Lions, And Tigers, And … The Flu? Oh My!

What if flu shots are mandatory -- with termination for those who refuse such vaccinations? Is that legal?

Okay, forget the lions and tigers, but by any measure, worry about this being the worst flu season in years — the number of people who are becoming sick or dying grows every day. And there’s virtually nothing you can do about it.

Well, there is — sort of.

You can get vaccinated against what medical authorities thought would be this year’s model flu virus. However, medical sources say that this vaccine may be less than 40% effective.   But better than nothing…

The workplace is particularly vulnerable to the flu — both by being adversely affected by absenteeism, and, more importantly, as a place to become infected with the flu virus. So it would seem natural for employers to want to protect the workforce by suggesting that employees become vaccinated.

Suggestions are good. But what if they are mandatory — with termination for those who refuse such vaccinations?

Is that legal?

First, we start with the presumption that most of live in “at will” states. That is, in states where employees can be hired and fired “at will” — as long as the reason for firing is not illegal. So what is illegal?  In brief, in an at-will jurisdiction this would consist of breaching a contract or collective bargaining agreement, or violating the Civil Rights laws.

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Ah, the Civil Rights laws: but surely you can fire someone who refuses to be vaccinated?

Yes.  But…

Virtually Every State Allows Religious Exemptions To Vaccinations

The “but” is that you cannot violate the religious discrimination provisions of Title VII (or the disability discrimination provisions of the Americans With Disabilities Act). And these laws can be implicated in the apparently simple and innocent act of requiring a vaccination.

How so?

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Let’s look at some cases from the health care field, where patients are among those most at risk for the flu and its devastations, and employers thus impose vaccination requirements on health care workers. In a recent lawsuit filed by the EEOC, a Michigan health care provider rescinded a job offer to an applicant because of her religious objection to receiving a mandatory flu shot. The company policy authorized the use of masks for those who refused a vaccine, and this applicant offered to wear a mask even though she would “eventually be working from home.”

So, why did the employer fire her?  The EEOC press release did not say.  Helpful, huh?

This lawsuit, however, is similar to one which the EEOC settled for $300,000 involving an employee at a Pennsylvania health center who, on religious grounds, refused a vaccination and was fired.  The health center had a mandatory seasonal flu vaccination policy unless an employee was granted a medical or religious exemption.  If that was granted, the employee was required to wear a face mask around patients during flu season.  If no exemption was granted, the employee would be fired.  Sounds OK, right?

During the 2013-14 flu season, however, the health center granted 14 medical exemptions but denied religious exemptions to all six employees who claimed it — they were all fired.  Sounds fishy, right?

Sorta easy case: exemptions were made for medical reasons but not for religious reasons. The law is pretty clear that an employee’s sincerely held religious beliefs must be respected and, “While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer’s Title VII duty to provide reasonable accommodation for religion.”  So stated an EEOC attorney.

Finally, a suit was filed by the EEOC in 2016 against a Massachusetts medical center which required an annual flu shot and permitted a religious exemption if the employee wore a face mask. When the subject employee, who worked in HR, was told by job applicants that she could not be heard while she was wearing the mask, she took it off, and asked her employer “to work with her to find an alternative accommodation that would permit her to honor her religious beliefs while effectively performing her job.”

Despite her request to “work with her,” the employer placed her on indefinite, unpaid leave, and when she made a complaint about this “and sought an alternative accommodation to the policy” she was fired.  Ah yes — retaliation also!

What Religions Actually Forbid Vaccinations, Anyway?

While it is generally easy to claim a religious objection and receive an exemption — which likely has prompted the EEOC to take actions in the few cases when this is not done, the seemingly odd thing is that “the pervasiveness of religion-based exemptions doesn’t reflect reality”:

“No major religion has explicit, doctrinal objections to vaccinations. … [the Senior Medical Director for Adult Vaccines for Merck Vaccines] found that only two religious groups ― Christian Scientists and the Dutch Reformed Church ― have demonstrated a precedent of widely rejecting vaccinations, but even these are not explicitly laid out in their doctrine.”

So, If It’s Not About Religion, What Is It About?

One law professor may have the answer: “The people who are claiming these exemptions — it’s not religious exemption, but ‘personal belief.’ My impression is that’s what most of the objection is about.”  Hmmm.

And a majority of doctors in a survey of pediatricians said that parents who object to vaccinating their kids “do so because they believe the vaccine is unnecessary, taxing on their child’s immune system or for fear the shot will cause their child pain.”  Not for religious reasons.

Anyway, Is This A Whole Lot To Do About Nothing?

Maybe.

A study from a year ago reported by PLOS One, “concludes that the research used to justify mandatory flu shots for health sector workers is flawed, and that the policies cannot plausibly produce the benefits that had widely been assumed.”

The upshot?

“I take it myself,” lead author Dr. Gaston De Serres said. “The reason why I do that is I continue to have the impression that it could work. But it’s one thing to say: ‘OK, on a voluntary basis, you get the vaccine despite all its weaknesses,’ and it’s another thing to say, ‘If you don’t get it, you get fired.’”

“I have the impression that it could work?”  That’s what this is all about?

Takeaway

I don’t know — but if forced to provide one it would seem to be: you must accommodate religion, even if it’s not about religion, as long as it’s claimed to be about religion.

And even if it’s not about religion — GET A FLU SHOT!

Sound about right?


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.