The federal appeals court based in Denver ruled on Tuesday that a former nursing home employee can pursue her claim of religious discrimination against her employer for failing to grant a religious exemption to its COVID-19 vaccination requirement.

Diann R. Bolonchuk alleged she was an 18-year employee of Cherry Creek Nursing Center/Nexion Health when it terminated her in October 2021. Bolonchuk, an evangelical Christian, expressed a religious objection to the COVID-19 vaccine based on some manufacturers’ use of fetal cells in development.

Instead, Cherry Creek Nursing Center denied her request for a vaccine exemption, noting public health regulations mandated the vaccination of health care workers. Routine testing, as an alternative to vaccination, would still “place an undue burden on the facility and jeopardize the health and lives of residents” and others. Because Bolonchuk was unvaccinated, the company terminated her employment.

Representing herself, Bolonchuk filed a federal lawsuit seeking $815,575 in damages.

Responding to the defendant’s motion to dismiss, then-U.S. Magistrate Judge Kristen L. Mix believed Bolonchuk to be making two claims: Her employer violated her First Amendment right to religious exercise and discriminated against her because of her religion in violation of federal civil rights law.

As for the constitutional claim, Mix noted Cherry Creek Nursing Center was a private entity not subject to the First Amendment. Turning to Bolonchuk’s employment discrimination claim, Mix concluded the company established an “undue hardship” justifying its refusal to accommodate a religious exemption.

Specifically, “requiring Defendant to accommodate Plaintiff in the manner requested would have violated the ‘Colorado Department of Public Health regulations mandating COVID-19 vaccination of healthcare workers,'” she wrote in April 2023. 

Bolonchuk objected, but U.S. District Court Judge Regina M. Rodriguez upheld Mix’s analysis and dismissed the case.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed Cherry Creek Nursing Center could not be liable for a First Amendment violation, but it believed Bolonchuk’s employment discrimination claim could proceed.

Judge Joel M. Carson III, writing in the panel’s Nov. 26 order, observed it was unclear whether Bolonchuk’s employer would have necessarily violated Colorado’s regulations for vaccinating health care workers had it granted her a religious exemption.

“Crucially, the Vaccine Mandate contemplates the availability of religious exemptions,” he wrote. Given the early stage at which the case was dismissed, the panel could not say whether Cherry Creek Nursing Center would have experienced an undue hardship by accommodating Bolonchuk after all.

“Without expressing any opinion on the merits of Ms. Bolonchuk’s claim or Nexion’s undue hardship defense, we reverse the dismissal” of the employment discrimination portion of the lawsuit, Carson wrote.

The case is Bolonchuk v. Cherry Creek Nursing Center/Nexion Health.