Back in June, when flu season
was still just a sneeze on the horizon, I reported in “Religious
Discrimination or Infectious Insubordination?” on how the Equal Employment
Opportunity Commission (“EEOC”) was suing a Massachusetts hospital for
religious discrimination over its policy of mandatory flu shots.
While not as infectious as the influenza
virus itself, the EEOC’s litigation over this issue also appears to be
spreading across the country. In EEOC v. Saint Vincent Health Center, the EEOC
has filed suit against a Pennsylvania hospital, alleging the facility violated
Title VII of the Civil Rights Act (“Title VII”) by failing to accommodate the
religious beliefs of six employees and terminating their employment.
According to the EEOC's lawsuit,
in October 2013, Saint Vincent Health Center implemented a mandatory seasonal
flu vaccination requirement for its employees unless they were granted an
exemption for medical or religious reasons. Under the policy, employees who
received an exemption were required to wear a face mask while having patient
contact during flu season instead of receiving the vaccination.
In its lawsuit, EEOC alleges
that the six employees requested religious exemptions from the flu vaccination
requirement based on religious beliefs, and that the facility denied their
requests. When the employees continued to refuse to get a flu shot, they were
fired. The lawsuit makes a point of noting
that during the same period, the hospital granted 14 vaccination exemption
requests based on non-religious medical reasons.
In addition to this newest case
in Pennsylvania, and the one in Massachusetts, the EEOC also has filed a
similar lawsuit
against a hospital in North Carolina for failing to accommodate employees’
religious objections to mandatory flu shots.
Title VII prohibits employment
discrimination based on religion, and imposes on employers a proactive duty to
accommodate sincerely held religious practices that may conflict with workplace
practices, as long as the religious practice does not impose an undue hardship
on the employer. For purposes of
religious accommodation under Title VII, undue hardship is defined by courts as
a “more than de minimis” cost or
burden on the operation of the employer's business. For example, if a religious
accommodation would impose more than ordinary administrative costs, it would
pose an undue hardship. This is a much lower standard than the Americans with
Disabilities Act undue hardship defense to disability accommodation.
Whether the EEOC or the healthcare
facilities will prevail in these lawsuits will likely hinge on whether it is an
undue hardship to offer an accommodation to a policy aimed at protecting the
health and safety of patients. In the
Massachusetts and Pennsylvania cases, an accommodation of wearing a facemask to
prevent contagion was refused by employees.
In the North Carolina case, the failure to accommodate claim is based on
the employee requesting an exemption after the deadline for getting a flu shot
already had passed.
According to the Centers for Disease
Control and Prevention, the flu is highly contagious and people with flu
can spread it to others up to about 6 feet away. Most experts think that flu
viruses are spread mainly by droplets made when people with flu cough, sneeze
or talk. These droplets can land in the mouths or noses of people who are
nearby or possibly be inhaled into the lungs. Less often, a person might also
get flu by touching a surface or object that has flu virus on it and then
touching their own mouth or nose. While the
effects of the flu on most people are not life-threatening, the CDCP notes that
severe cases of the flu can result in death for some people, such as the
elderly, young children, and persons with certain health conditions, including weakened
immune systems.
Back in August of this year, a
federal court in Pennsylvania dismissed a similar lawsuit brought by a hospital
employee in Fallon v. Mercy Catholic
Medical Center. In dismissing the
plaintiff’s Title VII religious discrimination, the court’s opinion
focused on the fact that the employee’s secular objections to receiving a flu
shot simply were not entitled to the religious protections of Title VII:
In sum, Fallon clearly
fails to state a claim for religious discrimination under Title VII. He does
not belong to a religious congregation, nor does he claim that his reasons for
refusing to be vaccinated are based on “religious beliefs,” sincerely held or
otherwise. To the contrary, Fallon’s stated opposition to vaccinations is
entirely personal, political, sociological and economic—the very definition of
secular philosophy as opposed to religious orientation. To adopt Fallon’s
argument that he need only show a strongly held moral or ethical belief in lieu
of a sincere religious belief would contravene Third Circuit and Supreme Court
precedent and would potentially entitle anyone with “strongly held” beliefs on
any topic to protection under Title VII’s religious discrimination provision.
However, it remains to be seen
whether the court’s ruling in Fallon will
be of much help to the Pennsylvania hospital in the EEOC’s latest lawsuit. Title VII and courts generally construe
religion very broadly, and in religious discrimination cases, courts are often
reluctant to “play God” by deciding what is or is not a sincerely held
religious belief or practice.
