In the midst of the flu pandemic, many health care employers are requiring employees to receive flu vaccinations. However, a number of workers have protested, claiming that they are entitled to an accommodation based on disability, religion or pregnancy. What are an employer's obligations to accommodate workers and what groups of workers are they required to accommodate? The Equal Employment Opportunity Commission (EEOC) has provided some useful guidance regarding these issues.
When Is an Employer Required to Accommodate an Employee's Request to Refuse the Flu Vaccine?
In a March 5, 2012 informal discussion letter, the EEOC advises that employees may be entitled to refuse a mandatory flu vaccine based on disability, religion or pregnancy.
An employer may need to grant an employee a reasonable accommodation and permit an employee to be exempt from a mandatory flu vaccination based on a disability as defined by the Americans with Disabilities Act (ADA) unless the employer can show an undue hardship, defined as a significant difficulty or expense.
An employer may also need to grant an employee a religious accommodation and excuse the employee from a mandatory flu vaccinations based on the employee's sincerely held religious belief, practice or observance unless the employer can show that doing so would cause the employer undue hardship or more than a de minimis cost to the employer's business operations. The EEOC advises that in a hospital context, the following factors may need to be considered in assessing whether there is an undue hardship:
The assessment of the public risk posed at a particular time;
The availability of effective alternative means of infection control; and
The number of employees who actually request accommodation.
The EEOC advises employers that the definition of religion is very broad and includes not only organized religions but also religious beliefs that are "new, uncommon, not part of formal church or sect, only subscribed to by a small number of people or that seem illogical or unreasonable to others" as well as non-theistic moral or ethical beliefs. The EEOC also advises in a December 5, 2012, informal discussion letter that if an employer has an objective basis for questioning the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional information supporting the employee's beliefs.
An employer that grants a religious accommodation and excuses a health care worker from a flu vaccine may impose additional infection control such as wearing a mask if doing so for legitimate, nondiscriminatory and nonretaliatory reasons.
An employer may be able to deny an employee's request for a religious accommodation if it can establish that:
The employee behaved in a manner markedly inconsistent with the professed belief;
The accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
The timing of the request is suspect (for example, it follows an earlier request by the employee for the same benefit for secular reasons); or
The employer had reason to believe that the accommodation is not sought for religious reasons.
Refusing to accommodate a pregnant individual's request to not be vaccinated could result in a disparate treatment claim, the EEOC advises. Further, impairments resulting from pregnancy may be considered disabilities under the ADA and entitle the employee to a reasonable accommodation.
Who Is Permitted to Claim a Reasonable Accommodation to a Mandatory Flu Vaccine?
While employees are protected by Title VII of the Civil Rights Act of 1964 and other state and local laws when it comes to religious discrimination and accommodation, how does an employer handle workers who are not employees, but handle significant duties and activities at the employer's workplace? While an employer has a significant interest in protecting its employees and those individuals for whom it cares from the chance that they might contract the flu, can an employer require that groups such as outside vendors, volunteers, interns and students doing clinical rotations at hospitals and independent contractors get a flu shot?
The EEOC took on this exact question in a November 2, 2012, informal discussion letter in which the EEOC evaluated whether Title VII religious accommodation obligations extended to vendors, contactors, volunteers, interns and students.
Employers may be held liable for religious discrimination if the failure to accommodate the religious beliefs of an outside vendor interferes with their employment opportunities with their own employer. The EEOC advises that "individuals who are employed solely by an outside entity, but subject to hospital policies because they enter the hospital to perform their duties may be protected under Title VII's prohibition on third-party interference," which prevents the hospital as a third-party employer from discriminatorily interfering with an individual's employment opportunities with another employer.
Employers are not obligated to accommodate the religious beliefs of those who are truly independent contractors. The EEOC states that a number of factors will be considered in determining whether an employee is an independent contractor including:
The employer's right to control when, where and how the worker performs the job;
The lack of skill required to perform the work;
The employer's provision of tools, materials, and equipment;
The work being performed on the employer's premises;
A continuing relationship between the parties;
The employer's right to assign additional projects to the individual;
The employer's authority to set the hours of work and duration of the job;
Payment of the individual by the hour, week, or month, rather than by the job;
The individual's failure to hire and pay assistants;
The individual's performance of work that is part of the employer's regular business;
The employer being in business;
The individual's lack of her own distinct occupation or business;
The employer's provision of employee benefits such as insurance, leave, or workers' compensation;
The employer treating the individual as an employee for tax purposes (i.e., withholding federal, state, and social security taxes);
The employer's authority to fire the worker; and
The parties' belief that they created an employer-employee relationship.
The EEOC advises that this list is not exhaustive and other aspects of the parties' relationship may affect the determination of whether an employer-employee relationship exists.
Volunteers who receive no significant payment for service are not employees and thus, employers are not obligated under Title VII to accommodate their religious beliefs. However, if the individual receives payment or benefit in any way (for example, benefits, professional certification, the work is required for employment or leads to employment) the individual could be considered an employee under Title VII and an employer would be obligated to reasonably accommodate their religious beliefs.
An employer's obligation to accommodate the religious objections of students or interns will depend on the facts of the situation and if the individual is treated more like a student volunteer or more like an employee.
Tips for Employers
Deciding whether or not to excuse employees from a mandatory flu shot based on a claimed exemption is no easy task as there is no clear cut answer depending on the facts of each situation. Good practice for an employer is to:
Carefully assess the facts surrounding the business need for implementing the mandatory flu vaccination policy and the employee's requested accommodation;
Engage in the interactive process with the employee to obtain more information if needed;
Consider and discuss potential reasonable accommodations with the employee such as granting the exemption, transferring the employee to another position if the other position does not require the vaccine, or having the employee wear a face mask for protection;
Enforce the flu shot policy uniformly with regard to all employees;
Avoid jumping to conclusions or terminating an employee based on his or her refusal to accept vaccination without engaging in the interactive process and discussing the reason the employee is claiming an exemption;
Consider any collective bargaining agreements that may apply as a flu vaccination policy is a mandatory subject of bargaining under the National Labor Relations Act and an employer cannot unilaterally impose a policy without providing the union with notice and a chance to bargain (see Virginia Mason Medical Center, 358 NLRB No. 46 (2012)); and
Consult with counsel to arrive at the solution that best suits its legitimate and reasonable business needs and concerns.
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