Victor Obiefuna, CSC Docket No. 2023-103

BackgroundThe appeal of Victor Obiefuna, Human Services Technician, Greystone Park Psychiatric Hospital, Department of Health, removal, effective March 21, 2022, on charges, was before Administrative Law Judge John P. Scollo (ALJ), who rendered his initial decision granting the appointing authority's motion for summary decision on March 17, 2023. Exceptions were filed on behalf of the appellant and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the ALJ’s initial decision, including a thorough review of the exceptions and reply, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of May 3, 2023, remanded the matter to the Office of Administrative Law (OAL) for further proceedings.

The Commission finds that the ALJ’s granting the appointing authority's motion for summary decision was not warranted in this matter. In this regard, under Executive Orders 283 and 290, “covered high-risk congregate settings must maintain a policy that requires covered workers to provide adequate proof that they are up to date with their COVID-19 vaccinations.” However, “[t]he policies adopted by covered settings ... must provide appropriate accommodations, to the extent required by federal and/or state law, for employees who request and receive an exemption from vaccination because of a... sincerely held religious belief, practice, or observance.”

Here, the appellant requested a religious accommodation to the requirement of receiving the vaccine. He was denied and nevertheless still refused to get vaccinated and was thus subjected to discipline. However, in issuing the summary decision opinion in favor of the appointing authority, the ALJ made no finding as to whether the accommodation request was validly denied. In other words, there was no substantive finding as to whether granting the requested accommodation would have amounted to an undue hardship to the appointing authority. The appellant, however, forcefully argues that he was wrongfully disciplined because the appointing authority should not have denied his accommodation. In this regard, part of the appellant’s accommodation request is that he be permitted to work while wearing personal protective equipment, such as a mask. Whether those measures would amount to an undue hardship to the appointing authority is unclear, as the ALJ did not engage in any fact-finding as to that issue, but rather, in part, dismissed the appellant’s claims of improper denial of his accommodation since the appellant assumed:

without any factual, statistical or other reasonable basis for doing so, that the prevalence of the virus in the workplace has significantly diminished and that the need for vaccination has dropped in direct proportion to his assumed facts. The Appellant’s Counsel’s argument is based on mere conjecture, while the Respondent’ argument is grounded in scientific data compiled and analyzed by the CDC and CMS.

However, the Commission believes that the above presents issues of fact that requires a hearing to establish the appropriateness of the accommodation denial and how or if those facts impact any determination as to the appellant’s guilt regarding the charges.

ORDER

The Civil Service Commission remands this matter to the Office of Administrative Law for further proceedings as outlined above.