by Michael A. Blickman and Paul H. Sinclair
Ice Miller LLP is an IMA member full service law firm…
As the kids head back to school and the leaves begin to change, we know flu season is just around the corner and so are flu shots. But the Equal Employment Opportunity Commission is trying to limit health care organizations from requiring all employees to get flu shots. And it’s going to federal court to do it.
On Aug. 7, 2017, a federal judge in North Carolina denied Mission Hospital’s motion for summary judgment on the EEOC’s claim that the hospital discriminated against three workers by firing them for refusing mandatory flu shots. Each of these employees refused the vaccination due to his or her religious beliefs.
The EEOC sued Mission Hospital of Asheville, N.C., in April of 2016 alleging violations of Title VII of the Civil Rights Act of 1964. The hospital claimed that it did accommodate religious objections (and had done so many times before), but these three workers failed to meet a September 1 deadline to request an exemption from the hospital’s mandatory vaccination policy. According to the hospital, these employees were terminated, because they failed to make a timely accommodation request and then refused the flu vaccine. The EEOC asserted that the hospital’s September 1 deadline for requesting an accommodation was arbitrary and “an arbitrary deadline does not protect an employer from its obligation to provide a religious accommodation.” In other words, the EEOC’s position is that Mission Hospital should have permitted the employees to remain employed despite the fact they ignored the well-publicized exemption filing deadline.
This is not the only example of the EEOC filing legal action against health care employers with mandatory vaccination policies. Last year, Saint Vincent Health Center of Erie, Pa., agreed to pay $300,000 and reinstate six employees who sued after they refused to participate in the hospital’s mandatory vaccination program because of their religious beliefs. In addition, the hospital agreed to reinstate the six individuals to their former positions. The hospital was also required to adhere to the definition of “religion” established by Title VII, which prohibits employers from rejecting accommodation requests based on their disagreement with an employee’s beliefs; their opinion that the belief is unfounded, illogical, or inconsistent in some way; or their conclusion that an employee’s belief is not an official tenet or endorsed teaching of any particular religion or denomination.
Title VII requires employers to accommodate the sincerely held religious beliefs of its employees. However, an accommodation need not be made if it would cause an employer to suffer an “undue hardship.” Most employers are familiar with the undue hardship defense under the Americans with Disabilities Act. That defense may come into play when employees with disabilities request accommodations, but it is extremely difficult to demonstrate undue hardship under the ADA, and therefore, the defense is not often used to deny an employee’s request for an accommodation.
Unlike the ADA’s undue hardship defense, the phrase “undue hardship” means something different when used in the religious accommodation context. In a religious discrimination case, an “undue hardship” occurs if the requested accommodation would cause more than a de minimis cost to the employer’s business operations. Therefore, it is arguably easier to show undue hardship in a religious accommodation case than it is in an ADA case. The EEOC issued informal guidance on religious discrimination in 2012 where it suggested that, in a healthcare context, the following factors should be considered in assessing whether there is an undue hardship in allowing exemptions from mandatory vaccination programs: (1) the scope of the public risk posed at that time, (2) the availability of effective alternative means of infection control, and (3) the number of employees who actually request accommodation. The EEOC also stated that a healthcare employer that grants a religious accommodation request and excuses an employee from a mandatory flu vaccine may impose additional infection control requirements, such as wearing a mask, as long as there are legitimate and non-retaliatory reasons for doing so.
Mission Hospital’s argument was that its reasonable accommodation obligations under Title VII were fully satisfied by permitting its employees to request a religious exemption from the mandatory flu vaccine program by a certain date. The hospital asked the court to dismiss the lawsuit on the grounds that it legitimately terminated the employees when they missed the exemption filing deadline and then later refused the flu vaccine. It seems that a key issue for the court was whether the September 1 deadline was reasonable under the circumstances. The judge held that a jury should determine whether “timely filing” for an exemption is a reasonable religious accommodation.
Ultimately, the judge held that “the facts here are not one-sided,” and a jury could side with either the hospital or the employees. The lesson for health care employers is what may seem to them to be a reasonable accommodation may not seem like one to the EEOC. And the EEOC is willing to go to court to prove its point. While the Mission Hospital case remains pending in a North Carolina federal court, now is a good opportunity for all health care employers to review their mandatory vaccine policies.
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