Tread Carefully Before Taking Action Against an Employee Who Refuses a Mandatory Flu Shot

28 January 2013 Labor & Employment Law Perspectives Blog

In what seems to be turning into one of the worst flu seasons in years, more and more employers, especially in health care industries, are requiring employees to receive a flu vaccine, and some employers do so on an annual basis. Such requirements raise questions of what to do when an employee refuses to be vaccinated. While mandating that employees receive the flu shot is generally permissible, the EEOC requires that employers provide “reasonable accommodation” to employees who have a disability or medical condition that might negatively interact with the vaccine, or those employees who have a “sincerely held religious belief” that prohibits them from being vaccinated. A recent case highlights that the reasons behind an employee’s refusal are key to determining the appropriate employer response. It has long been the case that employees can opt out of receiving a vaccine because of, among other reasons, a sincerely held religious belief under employment discrimination laws such as Title VII of the 1964 Civil Rights Act (Title VII). But, what constitutes a sincerely held religious belief such that the refusal to be vaccinated is protected under anti-discrimination laws? A federal judge in Ohio, in a decision titled, Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., has offered clarification that highlights that employers may be wise to use caution before denying an exemption request based on a sincerely held religious belief.

In the case, the hospital employer required its employees to be vaccinated. One employee refused because she is vegan and does not ingest or consume any animal products or by-products. Because the flu vaccine is grown in chicken eggs, vegans consider it an animal product, and the employee informed the hospital vaccination violated her beliefs as a vegan. The hospital considered her veganism a dietary choice or social philosophy rather than a religious view and terminated the employee for her refusal.

The employee filed a religious discrimination lawsuit, and the court refused the hospital’s request to dismiss the case, rejecting the employer’s contention that veganism is not a religious belief. In part, the judge relied on EEOC regulations defining “religious practices” to include “moral and ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” The court held that it was “plausible the [employee] could subscribe to veganism with a sincerity equating [to] that of traditional religious views.”

Although veganism is not the only or even the most common reason for an employee to refuse an employer-mandated vaccination, the court’s decision should give employers pause. Veganism, not traditionally thought of as a religion, may be entitled to the same protections as a traditional religion under employment discrimination laws. When confronted with an employee who refuses vaccination, an employer should be cautious and inquire as to the reason behind the refusal, keeping in mind that a moral or ethical belief regarding vaccinations that has the strength of religious conviction can be protected under discrimination laws.

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