If you require your employees to get a flu shot, what do you do with the ones who refuse on religious grounds? As with so much in employment law, it depends. In Equal Employment Opportunity Commission v. Mission Hospital, a federal district court in North Carolina denied the hospital’s motion for summary judgment, finding that there were disputes of fact as to whether the Mission Hospital discriminated against three employees on religious grounds.

Mission Hospital’s Flu Vaccine Program

Mission Hospital requires some employees to get flu shots. Foreseeing that some people object to getting flu shots, the hospital provided notices that all employees must be vaccinated by December 1 and that requests for exemption must be filed by September 1. The notice provided instructions specifically about religious exemptions. So far, so good.

The hospital publicized the flu shot requirement in a number of ways—flyers, screensavers, bulletin board postings and other advertisements. It also included the requirement in the offer letter to one of the three employee claimants. So the hospital made clear that it really wanted employees to get the flu shot, and it gave employees a way to get an exemption.

According to the court’s opinion, since 2010, Mission Hospital had granted religious exemptions to 250 employees who timely requested an exemption. Apparently, the claimants in this case all missed the hospital’s deadline to request an exemption and were terminated for failure to get the shot (or obtain a timely exemption). The EEOC said Mission Hospital treated the claimants differently because of their religious beliefs in violation of Title VII and filed a lawsuit.

The Law

As we all know, Title VII prohibits discrimination based on religion. Under the law, “religion” need not be a mainstream or widely recognized or practiced religion. In the Fourth Circuit (which includes North Carolina), to prove a threshold (or prima facie) case of religious discrimination, a plaintiff must establish that he or she (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of the belief, and (3) was disciplined for failure to comply with the conflicting employment requirement. If a plaintiff establishes a prima facie case, the defendant then must demonstrate that it could not reasonably accommodate the employee’s religious needs without undue hardship. Undue hardship in the religious accommodation context is different than in the ADA disability discrimination context. A religious undue hardship requires only that the employer establish that the accommodation would have required more than de minimis cost.

The Court’s Denial of Summary Judgment

The court assumed for purposes of summary judgment that the claimants established a prima facie case and had sincerely held religious beliefs. Again, the religious beliefs were not necessarily widely held. The claimants professed to believe that (1) “injecting the flu vaccine into my body is morally wrong because my body is a temple given by God”, (2) “I am healed by plants, fruits, and grains” (not chemicals), and (3) “injecting chemicals and diseases into my veins is not something God intends and is wrong.” The hospital did not deny the exemptions based on the religious beliefs but because each claimant missed the September 1 deadline to request the exemption.

The court did not probe into whether the claimants’ professed religious beliefs were sincerely held and seemed to suggest that a reasonable jury could find that these are not sincerely held or religious. The court also noted that a reasonable jury could side with the EEOC and find that the hospital’s refusal of the exemption was discrimination based on religion.

Lessons Learned for Your Flu Shot Program

• If you want to require employees to get a flu shot, expect some push back. Employees with medical issues and religious beliefs should be given a way to opt out.
• On the religious side of things, don’t get hung up on whether the employee’s reason sounds “religious” to you. The law broadly defines religion, and it doesn’t take much to qualify as a sincerely held religious belief. Don’t do or say (or allow your supervisors to do or say) things that suggest you think an articulated religious belief is bogus. That is a quick way to get the EEOC’s attention.
• Be sure to treat employees the same whether they want or don’t want the vaccine. In this case, the EEOC said that Mission Hospital gave employees who missed the December 1 deadline for getting the flu shot a grace period, but did not provide a similar grace period for those who missed the September 1 exemption request deadline. The court noted that a jury could find that the hospital was treating employees who did not request a religious exemption more favorably.

You don’t want to be in court over your flu shot program. Be fair, be flexible, and remember that you may have less than 100 percent participation and, absent a compelling argument that everyone must be vaccinated, there is probably not much you can do about it.