ENCINITAS — A former municipal employee’s lawsuit, claiming wrongful termination after the city refused to grant him a religious exemption from its COVID-19 vaccine mandate, has been moved to federal court.
Scott Vurbeff, a former city environmental project manager, seeks damages and lawyer fees for numerous allegations, including religious discrimination and retaliation.
Vurbeff was fired after more than 20 years of employment following the city’s implementation of a policy requiring all employees to be fully vaccinated for COVID-19. Vurbeff’s attorneys, Justin Reden and Collin Cresap of Reden and Riddell law firm in San Diego could not comment in time for publication.
Natalie Price, an attorney at Burke, Williamson and Sorenson law firm, filed a June 13 notice of removal on behalf of the city in the U.S. District Court for the Southern District of California.
A city spokesperson declined to comment on the litigation. During an October 2021 interview regarding the city’s COVID-19 vaccine mandate for another story, the city stated that “exemption requests are governed under state law and the city followed the state law,” and “the city does not release the status of religious or medical exemption requests to protect employee privacy rights.”
Mandatory vaccinations
According to the complaint, Vurbeff worked as a city employee at the onset of the COVID-19 pandemic. Starting Dec. 11, 2020, Pfizer’s COVID-19 vaccine was publicly available under emergency use authorization and by mid-2021, vaccination policies were being implemented nationwide.
In June 2021, Encinitas required all employees to show proof of vaccination or wear masks. Two days after the FDA approved the COVID-19 vaccine, City Manager Pamela Antil implemented an administrative policy on Aug. 25, 2021, establishing workplace protocols requiring all city employees to get vaccinated or present weekly negative tests.
The policy also stated vaccinations would become mandatory, requiring all union and non-union employees to submit proof of their first COVID-19 vaccine dose within 45 days of FDA approval, or Oct. 7, 2021.
Documents show that full vaccination and all recommended boosters were required for all employees (current and prospective), volunteers and contractors at city facilities.
“We at the City of Encinitas are holding ourselves to a higher standard of safety,” said then-Mayor Catherine Blakespear. “We do not want to be the cause of any infections and we know the vaccine is the best way to stop the spread of coronavirus. We want people to have the confidence when they come into City Hall to conduct business or when our employees enter their homes that we are doing all we can to protect them.”
The cities of Encinitas, Del Mar and San Diego were the only municipalities in San Diego County to enact vaccine mandates for employees.
The City of Encinitas followed through on its policy, placing all unvaccinated workers on unpaid leave for 30 days on Oct. 7, 2021, as reported by The Coast News. Employees who remained unvaccinated after the 30-day period were terminated for noncompliance.
“The (vaccine) mandate creates two classes of city employees, vaccinated and unvaccinated… The members of one class, the unvaccinated, specifically the members who request a religious exemption, get terminated …They cannot advance their careers. They cannot provide for their families, pay mortgages, or make car payments,” the lawsuit states. “The other class, the vaccinated… gets to keep their job in their chosen profession, advance their careers, provide for their families, pay their mortgages, and make car payments.
At the time, the city reported that less than 6% of employees had not been vaccinated; however, this did not include the Encinitas Firefighters Association, which represented 50 employees, 36% of whom remained unvaccinated and opposed the city’s mandate.
“We strongly support weekly testing and vaccination for those who chose it,” said Alex Poff, president of the Encinitas Firefighters’ Association. “And I can’t emphasize enough that we’ve been doing this for two years without incident. Our number one goal is to give the community the level of service that they are accustomed to and they deserve.”
After months of negotiations and deadline extensions, the city and the fire union eventually agreed to require employees to be “partially or fully vaccinated… or in the process of seeking an exemption … as a reasonable accommodation for religious or medical reasons” by June 10, 2022.
Religious exemptions
Several employees, including Vurbeff, requested religious exemptions from the city’s HR director. According to the complaint, Vurbeff’s request for a religious exemption as a Christian was denied before his eventual termination on Oct. 11, 2021.
The lawsuit claims the city had a “custom or policy” of denying religious exemption requests and terminating individuals based on their medical status (vaccinated or unvaccinated for COVID-19).
Around this time, all unvaccinated city employees who requested a religious exemption for the COVID-19 vaccine, including Vurbeff, were terminated from their employment, the lawsuit alleges.
Vurbeff’s attorneys further argue that the city offered no alternatives for employees opposed to the COVID-19 vaccine. City employees had been working remotely for nearly a year and a half before a vaccination was widely available, making the city’s decision to terminate him punitive and “entirely unnecessary,” the lawsuit states.
“(The city) had other options, such as reasonably accommodating (Vurbeff) by testing, masking and other precautionary measures and/or placing (him) on a leave of absence. It should be noted that previously, (Vurbeff) had worked remotely for 17 months and could continue to perform his duties remotely. No such accommodation to work remotely was ever given to him. The decision to terminate, without any recourse, was retaliatory.”
By Feb. 28, 2023, the COVID-19 emergency declarations at the city, county, and state levels had all ended. The city of Encinitas rescinded its mandatory COVID-19 vaccine policy in April 2023.
‘This is the hill we die on’
In December 2020, the San Diego County Health and Human Services Agency adopted stringent public health restrictions to help curb the spread of COVID-19, ordering all residents to wear masks and stay in their homes (except for traveling to and from jobs deemed “essential”) while prohibiting all gatherings with members from other households.
Nearly a year after the Pfizer vaccine was made publicly available, the San Diego City Council adopted an emergency ordinance on Nov. 29, 2021, prohibiting unvaccinated individuals from serving as volunteers, employees or elected officials. The city’s policy resulted in the dismissal of 14 employees, the resignation of more than 130 police officers and several lawsuits.
Amy Reichert, co-founder of ReOpen San Diego, a group representing thousands of residents and first responders opposed to earlier stay-at-home orders and mandatory mask policies, launched one of the legal battles against the city over its sweeping vaccine requirement.
“This is the hill we die on,” Reichert told The Coast News.
According to Reichert, the city’s case-by-case process for considering employees’ religious or medical exemption requests was “excruciating” and forced workers to explain their written requests directly to a supervisor via Zoom or in-person meeting.
“If that’s not bullying and intimidation, I don’t know what is,” Reichert said.
In March 2022, the city eventually approved 790 employees’ medical and religious exemptions to the vaccine mandate. By then, the ordinance had reportedly boosted the municipal employee vaccination rate from 69% to over 90%, which city officials touted as a success.
“What that means is that our employees are safer and their coworkers are safer,” San Diego Mayor Todd Gloria said.
However, the increased vaccination rates for city workers didn’t stop Reichert and thousands of frustrated residents and civil servants from holding rallies, press conferences, fundraisers and bake sales to help voice their opposition to the controversial ordinance.
The city eventually settled with ReOpen San Diego in April 2023, agreeing to rescind the mandate and pay $40,000 in the group’s attorney fees. The city also settled another vaccine mandate lawsuit, paying $70,000 to Protection for the Educational Rights of Kids.
“I’m glad we did what we did because when you look at other municipalities, they didn’t have the same outcome we did,” Reichert said. “Los Angeles is just now rescinding vaccine mandates for firefighters.”
Jared Wilson, president of the San Diego Police Officers Association, said the mandate was unnecessary and negatively impacted the retention and recruitment of law enforcement personnel while costing taxpayers millions to defend in court.
“There might have been good intentions, but there’s no evidence the city’s vaccine mandate stopped a single person from getting COVID,” Wilson said.
Post-COVID litigation
Vurbeff’s complaint, initially filed in Vista Superior Court in 2023, is one of hundreds of ongoing lawsuits nationwide against school districts, municipalities and other agencies for imposing mandatory vaccination policies during the pandemic.
This month, a federal jury awarded a Tennessee woman nearly $700,000 after she was fired by BlueCross BlueShield of Tennessee for refusing to comply with the health care company’s COVID-19 vaccine mandate based on her “sincerely held religious beliefs.”
Last month, the Ninth Circuit Court of Appeals overturned a lower court’s dismissal of a lawsuit brought by Idaho-based nonprofit Health Freedom Defense Fund and other plaintiffs against the Los Angeles Unified School District over its mandatory employee vaccination policy. The three-judge panel ruled the lawsuit could proceed despite the vaccine mandate being rolled back.
John W. Howard is a San Diego attorney representing the plaintiffs in the case against LAUSD. Since the pandemic started, Howard’s law firm, JW Howard Attorneys, has handled more than 40 lawsuits related to COVID-19 vaccine mandates.
Regarding Vurbeff’s lawsuit, Howard believes the city’s removal of the case from state to federal court was not necessarily good for the plaintiff’s case.
“I haven’t found the federal courts to be more friendly than state courts,” Howard told The Coast News. “I found them to be remote, rigid and not particularly helpful. It’s a case-by-case basis.”
However, Howard said the city’s alleged unwritten “policy” of denying all religious exemptions is particularly offensive and certainly a cause for litigation.
“Specifically, wholesale denial of religious exemption is absolutely unconstitutional and improper,” Howard said. “We are fighting cases right now where there have been religious exemptions denied. If you deny (a religious exemption request), you are abridging the right to free exercise of religion. The current Supreme Court has been particularly sensitive to efforts like that.”
Reichert, a former Republican candidate for county supervisor, agrees with Howard and said in the case of Vurbeff, she believes the city likely violated his constitutional rights.
“Public opinion has significantly shifted from a couple of years ago; now, the majority of Americans believe that no one should have been fired for refusing the COVID-19 shot,” Reichert said. “There will be lawsuits for years to come.”
Over the last four years, San Diego County Health and Human Services Agency officials have reported 1,028,402 confirmed positive COVID-19 cases, 42,580 hospitalizations and 6,389 deaths countywide.
In June, the Centers for Disease Control and Prevention endorsed the newest COVID-19 vaccine and recommended that everyone 6 months and older get an updated shot. The latest vaccines are expected to be available in fall 2024.
2 comments
Hope he wins and the rest who lost their jobs sue as well.
How many lost their jobs in Encinitas overall Jordan?
The city’s behavior during Covid was despicable. No leadership from Blakespear at all, except for threats and more rules. Meanwhile she invited thousands of people, mostly unmasked, into Encinitas for a BLM protest. No additional security was on site, most were unmasked and standing close to one another. The hypocrisy was in full view when folks sitting in or on their cars watching a sunset were ticketed $1000 each for being outside.
Jordan, is there any follow up to learn if any of those people were able to beat their tickets or did they have to pay the fine?
Thanks for your message JB. I am currently requesting the names of all city employees from that time period to find out a rough estimate of those who were fired due to the mandate. The city will not give me the name of those fired due to medical and privacy concerns, which is understandable. But I am continuing to look into the city’s role and I hope to to speak with anyone who experienced the same thing as Scott. The courts are recognizing that these mandates infringed on people’s rights and that is absolutely newsworthy to me. Thanks for reading, JB. We truly appreciate your support.