Mandatory Flu Vaccinations? Immunize Yourself Against Religious Discrimination Claims

23 January 2017 Labor & Employment Law Perspectives Blog
Authors: John S. Lord Jr

You are an HR generalist at a 300-bed community hospital. Your boss has instructed you to make sure that all personnel files document that the employee received the hospital’s annual mandatory flu vaccination. However, you notice that seven employees still have not gotten their vaccinations, two weeks after the deadline. When you email them to ask why, they respond they cannot get the vaccine due to their religion. What do you do next?

A good idea would be to chat with the hospital’s labor and employment lawyers. That is because in the past several years, both the EEOC and plaintiff’s attorneys have brought lawsuits claiming Title VII violations when employees refused to be vaccinated due to their religious beliefs. In one case we reported on in 2013, a court ruled that the practice of veganism — not consuming any animal products — might be considered a religion. In that case, the employer hospital required employees to receive flu vaccines. However, a vegan employee refused to be inoculated, arguing that because the flu vaccine is grown in chicken eggs, it was an animal product. After the court allowed the employee’s case to go forward with the ruling that veganism may potentially be a religious practice, the hospital confidentially settled with the employee.

More recently, in another flu vaccine refusal case, the EEOC sued a Pennsylvania hospital, for allegedly denying a religious accommodation under Title VII. That case settled much more publicly, with the hospital agreeing to enter into a consent decree and agreeing to pay $300,000 and offer six employees reinstatement.

The hospital denied any violation of Title VII in the consent decree. But, in the underlying lawsuit the EEOC alleged that the hospital denied religious accommodations to employees who did not wish to take a mandatory flu vaccine for sincerely held religious beliefs. The EEOC claimed that during a specific time period, the hospital granted fourteen vaccination exemption requests based on medical reasons, while denying every single religion-based exemption request.

The consent decree states the hospital cannot deny an employee’s exemption request just because it disagrees with an employee’s belief or because it feels the claimed religion is unreasonable, inaccurate, unfounded, illogical, or inconsistent with the hospital’s views. The consent decree is not a court ruling and is not binding law. However, it does show how aggressive the EEOC will be on this topic and shows how hard the EEOC will push employers that terminate employees who request religious exemptions for vaccinations.

If you are in the position of having to determine whether your organization should give an exemption to a mandatory vaccination, be careful about denying an exemption because the request is not based on a “standard religion.” Additionally, you will want to think about possible other accommodations in lieu of a vaccination that would help eliminate the risk of the transmission of disease to others. For example, some health care employers consider requiring non-vaccinated employees to wear face masks around certain patients.

Finally, remember that even though patient and other employee safety is paramount, other employee rights and employer obligations must be considered.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights

Lacktman, Ferrante Cited in mHealth Intelligence About Ryan Haight Act
19 September 2019
mHealth Intelligence
Vernaglia Comments on AHA v Azar Decision
18 September 2019
MedPage Today
Tinnen Discusses How Viewpoint Diversity Helps Businesses Thrive
18 September 2019
InsideTrack
Lach Comments on Launch of New Group
16 September 2019
BizTimes Milwaukee
MedTech Impact Expo & Conference
13-15 December 2019
Las Vegas, NV
Review of 2020 Medicare Changes for Telehealth
11 December 2019
Member Call
BRG Healthcare Leadership Conference
06 December 2019
Washington, D.C.
CTeL Telehealth Fall Summit 2019
04-06 December 2019
Washington, D.C.