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A split panel of the Third Circuit Court of Appeals has revived a Title VII religious bias lawsuit against Geisinger Medical Center, allowing over 100 employees to explore whether the hospital network unreasonably required nasal swab testing for those opposed to its COVID-19 vaccine mandate.

The appellate panel ruled 2-1 on Monday to reinstate the employees’ religious bias claim while upholding the dismissal of their equal protection claim. The court said the workers provided sufficient detail to raise concerns about ethylene oxide, a chemical used to sterilize the nasal swabs, which could make the testing accommodation unreasonable.

“It may be that discovery will reveal that any potential exposure to ethylene oxide from twice weekly nasal swabs is not unreasonable under the circumstances, but at the pleading stage, these allegations suffice,” the panel wrote.

The employees alleged in their November 2021 lawsuit that Geisinger required COVID-19 vaccination in August 2021 but granted medical and religious exemptions on the condition that workers undergo twice-weekly nasal swab testing. When they learned the swabs were sterilized with ethylene oxide, the hospital denied their religious exemption requests, prompting the lawsuit.

The panel emphasized that the equal protection clause applies only to state actors, and Geisinger, as a private health network, does not qualify. While the lower court had rejected the Title VII claim, arguing the workers’ opposition to the nasal swabs was not based on sincere religious beliefs, the appellate majority said that Title VII also protects employees if an accommodation is unreasonably imposed.

Although the hospital argued that exempting employees from regular testing would create undue hardship, the court noted that such claims are premature before discovery. The partial dissent by U.S. Circuit Judge Cheryl Ann Krause argued that objections to nasal swabs were medical, not religious, and that all exempted employees, not just those with religious objections, were subject to testing.

Geisinger operates 10 hospital campuses, a research institute, and the Geisinger School of Medicine, employing more than 24,000 workers.

Representatives for both Geisinger and the employees did not immediately comment.

The workers are represented by Gregory A. Stapp of Stapp Law LLC. Geisinger is represented by Anthony Andrisano and Jared L. Pickell of Buchanan Ingersoll & Rooney PC.

The case is Federoff et al. v. Geisinger Clinic et al., case number 24-2844, in the U.S. Court of Appeals for the Third Circuit.