In the midst of one of the worst flu seasons to date, many hospitals and other health care organizations enforced mandatory flu vaccine policies for their employees to boost vaccination rates. However, recent litigation and governmental actions should serve as a reminder that health care entities should carefully consider safeguards whenever implementing mandatory vaccine policies and to not categorically deny all requests for religious exemptions based on anti-vaccination beliefs.

In January, the Department of Health and Human Services (HHS) announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR) and released a proposed rule to provide protections for health care workers who refuse to participate in services that run counter to their religious beliefs or moral conviction. Recent legal challenges to mandatory vaccination policies in the health care context have also gained media attention.

Earlier this month, the United States Department of Justice (DOJ) accused a county-owned skilled nursing facility (SNF) in Wisconsin of violating a certified nursing assistant’s religious rights when it required her to be vaccinated or be terminated if she refused.  Although the certified nursing assistant believed that the Bible prohibited her from receiving the vaccine, the SNF refused to grant her an exemption from its vaccination policy because she was unable to produce a written statement from the clergy leader supporting her request, as the SNF’s exemption policy required. The DOJ complaint asserts that the SNF’s vaccination policy denies religious accommodations to employees who do not belong to churches with clergy leaders and that the SNF unlawfully denied the employee a reasonable accommodation for her religious beliefs when it refused her request for an exemption.

However, not all requests for accommodation must be honored.  In Fallon v. Mercy Catholic Medical Center, an employee sued his hospital employer for wrongful termination alleging religious discrimination and a failure to accommodate in violation of Title VII of the Civil Rights Act of 1964 when the hospital terminated him for refusing to get his annual flu shot. The Third Circuit Court of Appeals sided with the hospital and held that the employee’s “sincerely held beliefs” were not religious but based on health concerns, and therefore, the hospital did not violate Title VII.

In another recent development, a Massachusetts state Superior Court dismissed a lawsuit filed by the Massachusetts Nurses Association against Brigham and Women’s Hospital for lack of standing when the union challenged the hospital’s flu vaccination policy. The dismissal occurred a few months after the court denied the union’s request for an injunction.  Thus, a plaintiff’s standing to challenge mandatory vaccination policies will be scrutinized.

Key Takeaways

Despite the actions of DOJ and HHS, health care employers are well within their rights to implement a mandatory flu vaccination policy, especially considering the potential implications to patient safety. Employers need to be prepared to handle requests for reasonable accommodations made by employees who have sincerely held religious beliefs against flu vaccination.  When presented with such a request for accommodation, employers should engage in the interactive process with the employee as outlined in this recent blog post.

To lessen the risk of infringing on worker’s rights, many health care entities are employing non-mandatory tools and policies to boost employee vaccine participation through positive enforcement rather than with the threat of being fired. For example, health care entities can ensure that employees are educated and reminded about the benefits of being vaccinated, provide free and convenient access to vaccines, and issue small incentives and rewards to employees who are vaccinated.

Whenever implementing a mandatory vaccination policy, employers should be prepared for a challenge. Essentia Health required its employees to receive the flu vaccination and sustained a public legal challenge from three hospital unions.  Essentia prevailed, discharging 50 workers who refused to be vaccinated.

Lastly, health care entities should review applicable state-worker vaccination laws to ensure they are in compliance with such laws when deciding upon vaccination policies.

The United States is in the midst of an unusually lethal flu season, and health experts agree that despite inconsistencies in their effectiveness, flu shots are among the best ways to fight the spread of the flu. A recent holding from the Third Circuit Court of Appeals provides some good news for health care employers who require that their patient-facing employees receive flu shots, making it more difficult for employees to claim a religious exemption.

Courts have held that health care employers may require their patient-facing employees to be vaccinated against a number of diseases, including the flu.  Whether employers can mandate vaccinations for all employees has been a closer question.  A key issue faced by employers is determining whether an employee’s anti-vaccination beliefs qualify for a religious exemption.

In Fallon v. Mercy Catholic Medical Center, the Third Circuit considered the religious exemption, clarifying what may qualify as such. Paul Fallon, a psychiatric crisis intake employee of Mercy Catholic Medical Center (“Mercy”), refused to get his required annual flu shot. Fallon had successfully asserted a religious exemption for several years before Mercy changed its policy to require that employees seeking such exemptions provide a note from a clergy member. Fallon, who does not belong to a religious organization, did not provide the clergy note, instead outlining his “sincerely held beliefs” opposing the vaccine in a 22-page essay. Mercy determined that Fallon’s beliefs, however sincere, were not religious. It did not grant the exemption, and subsequently fired Fallon when he continued to refuse vaccination. Fallon sued Mercy for wrongful termination alleging religious discrimination and a failure to accommodate in violation of Title VII of the Civil Rights Act of 1964.

The District Court sided with Mercy, and the Third Circuit affirmed the decision. The court relied on the three-part modern definition of religion, as adopted in Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981): a religion (1) addresses fundamental and ultimate questions having to do with deep and imponderable matters; (2) is comprehensive in nature, consisting of a belief system as opposed to an isolated teaching; and (3) is often recognized by the presence of certain formal and external signs.  The court concluded that Fallon’s belief that “the flu vaccine may do more harm than good” amounted to nothing more than a concern about the health effects of the vaccine and demonstrated his disbelief of the scientifically accepted view that it is harmless to most people.  Therefore, Fallon could not meet either of the first two prongs of the Africa test.  In addition, Fallon was unable to meet the third pong because he could not demonstrate that his beliefs manifested in “formal and external signs,” such as services or the existence of clergy.    Accordingly, the court concluded that Fallon’s “beliefs do not occupy a place in his life similar to that occupied by a more traditional faith,” meaning that “[h]is objection to vaccination is . . . not religious and not protected by Title VII.”

While the court’s decision provides guidance for employers responding to anti-vaccination beliefs, the court recognized that anti-vaccination beliefs can be part of “a broader religious faith.”  Thus, employers should be mindful not to categorically deny all requests for religious exemptions based on anti-vaccination beliefs.

Employers also should follow the recent developments within the Department of Health and Human Services (HHS), which recently established a new Conscience and Religious Freedom Division in the Office for Civil Rights (OCR) and released a proposed rule that would provide protections for health care workers who refuse to participate in services that run counter to their religious beliefs or moral convictions.   In an HHS press release on January 19, 2018, Acting HHS Secretary Eric D. Hargan said that the creation of the Division constitutes “a rollback of policies that had prevented many Americans from practicing their profession and following their conscience at the same time,” adding that “Americans of faith should feel at home in our health system, not discriminated against.”  These developments, and the public comments by HHS officials, may signal a move to prevent employers from enforcing mandatory flu vaccination policies.

Each year between October and May, millions of people contract the flu. Recent estimates suggest that up to 111 million workdays are lost during the flu season each year — at an estimated $7 billion per year in sick days and lost productivity.[1]  In light of the significant impact the flu can have on human capital and workplace productivity, many employers – especially those with employees who frequently interact with members of the public through the course and scope of their employment, such as health care providers, retailers, and educators – are beginning to implement policies mandating flu shots for all employees. The administration of an annual flu vaccine can substantially reduce the risk of contracting the flu and spreading it to others. During the 2015-2016 flu season, the Center for Disease Control estimates that flu vaccinations prevented approximately 5.1 million illnesses and 2.5 million flu-associated medical visits. However, as discussed in our HEAL Take 5 December 2016 newsletter and last month’s blog post, a recent influx of Equal Employment Opportunity Commission (EEOC) lawsuits alleging religious discrimination and failure to accommodate under Title VII highlight the challenges employers face when implementing mandatory flu vaccination policies.

On September 22, 2016, the EEOC filed a lawsuit against Saint Vincent Health Center in Erie, Pennsylvania alleging religious discrimination on behalf of six Saint Vincent former employees, asserting that the hospital refused to grant them religious-based exemptions from a mandatory flu vaccine policy and then discharged the employees when they refused the vaccination. EEOC v. St. Vincent Health Ctr., No. 16-224 (W.D. Pa. Sept. 22, 2016).  In December 2016, Saint Vincent settled the suit for $300,000 and offered reinstatement to the terminated employees. Further, Saint Vincent agreed on a going forward basis to grant exemptions to its mandatory flu vaccine policy to all employees who request one due to sincerely held religious beliefs unless the hospital can demonstrate an undue hardship to its operations. The hospital agreed that it would not deny any accommodation requests solely because it disagrees with an employee’s stated beliefs, thinks the belief are unfounded, or that the beliefs are not based on an official religion or denomination. Additionally, Saint Vincent agreed to notify its employees of their right to request a religious exemption to any mandatory vaccination policy, implement appropriate procedures for considering such accommodation requests, and provide training regarding Title VII reasonable accommodation to certain personnel.

Saint Vincent is not the only employer to recently be targeted by the EEOC as a result of its mandatory flu vaccine policy. Two similar suits are pending in North Carolina and Massachusetts. See EEOC v. Mission Hosp., Inc., No. 1:16-CV-00118 (W.D.N.C. Apr. 28, 2016); EEOC v. Baystate Med. Ctr., Inc., No. 3:16-cv-30086 (D. Mass. June 6, 2016).  In both of those suits, the EEOC has alleged similar violations of Title VII due to a failure to accommodate the religious practices of employees.

While it is uncertain how ardently the EEOC will pursue these cases under the new administration, individual employees remain able to pursue claims for religious discrimination on their own behalf. Moreover, in addition to Title VII compliance, employers risk running afoul of the Americans With Disabilities Act (ADA) and similar state laws if they do not consider accommodations for employees who choose not to be vaccinated as a result of existing medical conditions.  The recent uptick in cases on this issue makes clear that employers should be cautious when developing mandatory flu vaccine policies and should consult legal counsel before implementing any such policy (or refusing to grant an exception to the policy) to insure its compliance with Title VII, the ADA, and comparable state or local law.  Employers should also work with employees to think outside the box regarding possible accommodations when an employee expresses an objection to the policy due to a sincerely held religious belief or for medical reasons.  Among the available accommodations a hospital may consider are the use of a surgical mask or transfer to a non-patient-facing position.

[1] Statistics referenced herein are taken from the CDC website.

With flu season quickly approaching, health care employers may be considering mandatory influenza vaccinations for their workforce. Mandatory vaccination policies may dramatically increase patient safety, but they may also cause friction within the workforce when employees object on religious grounds to being vaccinated.

While no federal and few state statutes address the legality of enforcing mandatory vaccination policies, the EEOC and private litigants recently have moved this issue forward in the courts. Under Title VII of the Civil Rights Act of 1964 (“Title VII”), employees with sincerely held religious beliefs are entitled to a reasonable accommodation of those beliefs, provided that such accommodation does not create an undue hardship for their employer. This year, the EEOC has filed at least three separate lawsuits against hospitals in Pennsylvania, Massachusetts, and North Carolina alleging failure to accommodate religious beliefs in relation to such hospitals’ respective mandatory influenza vaccination policies.[1]

These lawsuits follow shortly on the heels of a decision in the District Court of Massachusetts, granting summary judgment in favor of a hospital employer that terminated an employee who refused a mandatory flu vaccination because of her religious beliefs. In Robinson v. Children’s Hospital Boston, Civ. No. 14-10263 (D. Mass. Apr. 5, 2016), the defendant hospital implemented a policy requiring all persons who worked in or accessed patient care areas to be vaccinated against the flu to ensure the safest possible environment and highest possible care for its patients.

The plaintiff, one of the first hospital employees to interact with patients as they entered the emergency room, refused the flu vaccination for religious reasons and was permitted by the hospital to explore whether there was another internal position outside of patient care that would exempt her from the flu vaccine. The court concluded that the hospital’s efforts to locate another position for the plaintiff—including allowing her to use earned time off to search for employment elsewhere—and to label her termination a voluntary resignation to preserve her ability to re-apply for other hospital positions in the future, constituted a reasonable accommodation under Title VII.

The court also concluded that granting the plaintiff’s request not to be vaccinated would have caused the hospital an undue hardship because it would have increased the risk of transmitting influenza to the hospital’s already vulnerable patient population. The admissible evidence led the court to find that (i) health care employees are at a high risk for influenza exposure, which can be fatal to vulnerable patients; (ii) numerous medical organizations support mandatory influenza vaccination for health care workers; and (iii) the medical evidence in the record demonstrated that a vaccination is the single most effective way to prevent the transmission of the flu.

While the hospital’s policy in Robinson only covered patient-facing employees, health care employers with flu vaccination policies impacting all employees should be aware that they will be subject to heightened scrutiny by regulators such as the EEOC. For instance, in EEOC v. Baystate Medical Inc., Civ. No. 3:16-cv-30086 (D. Mass. June 2, 2016), Baystate’s policy required employees who refused the flu vaccination to wear a surgical mask at all times while working at the hospital’s facilities. The employee in question worked in human resources, had no patient contact, and argued that it was not reasonable for her to wear the mask because people complained that they could not understand what she was saying. Following several occasions in which the employee pulled the mask down away from her mouth so that people could understand her, the plaintiff was discharged for violating Baystate’s policy. While the facts have yet to be developed, these allegations were sufficient to prompt the EEOC to file suit.

Other courts addressing religious discrimination claims in this context also have indicated the importance of the employee’s interaction with patients in determining whether and to what extent a mandatory vaccination policy may be enforced. In Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., Civ. No. 1:11-cv-00917 (S.D. Ohio Dec. 27, 2012), the plaintiff-employee alleged that her adherence to veganism prohibited her from receiving a flu shot. On a motion to dismiss, the court allowed a religious discrimination claim to proceed, finding that the plaintiff could subscribe to veganism with a sincerity equating to that of sincerely held religious views. Notably, the court made a point of stating that the decision did not address the safety of patients at the hospital, which was the hospital’s presumed justification for terminating the plaintiff. The court signaled that it would consider this justification in light of what, if any, contact the plaintiff had with patients, and/or what sort of risk her refusal to receive a vaccination could pose in the context of her employment. (The case later settled.)

Employers looking for additional guidance as to whether and to what extent they must accommodate an employee’s refusal be vaccinated against seasonal influenza also should look to any state or local laws that may impact their ability to mandate flu vaccinations. For instance, a New York statute requires people to be vaccinated if they are affiliated with or employed by a health care facility and who engage in activities that could potentially expose patients to influenza.[2] Those who decline the flu shot during flu season must wear a surgical mask while in areas where patients are normally present. The statute also requires health care facilities to supply such masks to personnel free of charge.

Takeaways

Particularly given the implications to patient safety, health care employers are well within their rights to implement a mandatory flu vaccination policy. Nonetheless, employers should be prepared to address requests for reasonable accommodation made by employees who decline a vaccination because of sincerely held religious beliefs. In those circumstances, employers should engage in the interactive process, with the following considerations in mind:

  • Consider the nature of the employee’s position, as you may have more difficulty in enforcing the policy against employees who do not routinely interact with patients. Courts are more likely to require an alternative accommodation for employees in non-patient-facing roles.
  • Determine whether the employee can be accommodated by wearing a surgical mask or by temporarily or permanently transferring that employee to another position that does not implicate patient safety.
  • Ensure that any refusal to be vaccinated originates from a sincerely held religious belief, but be aware that challenges to a sincerely held belief have been heavily scrutinized by the courts.

A version of this article originally appeared in the Take 5 newsletter Five Key Issues Impacting Health Care Employers.”

[1] EEOC v. St. Vincent Health Ctr., No. 16-224 (W.D. Pa. Sept. 22, 2016); EEOC v. Baystate Med. Ctr., Inc., No. 3:16-cv-30086 (D. Mass. June 6, 2016); EEOC v. Mission Hosp., Inc., No. 1:16-CV-00118 (W.D.N.C. Apr. 28, 2016).

[2] New York State Sanitary Code, 10 N.Y.C.R.R. § 2.59.