Blocked Shot? Employer Runs into Religious Issues with Mandatory Flu Vaccines

by Bradley Arant Boult Cummings LLP
Contact

Bradley Arant Boult Cummings LLP

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bradley Arant Boult Cummings LLP | Attorney Advertising

Written by:

Bradley Arant Boult Cummings LLP
Contact
more
less

Bradley Arant Boult Cummings LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.