How Can Health Care Workers Who Refuse to Get Flu Shots Be Accommodated?

​Is wearing a mask enough protection for patients when employees in health care settings refuse to get flu shots? Most health care providers say it is, but some don't and will instead transfer or even terminate workers who decline the shots, according to Rob Wolff, an attorney with Littler in Cleveland.

Termination can be a risky approach, as the Equal Employment Opportunity Commission (EEOC) filed three lawsuits against health care employers in 2016 over mandatory flu shot programs because employees with religious accommodation requests were not sufficiently accommodated, noted Patricia Pryor, an attorney with Jackson Lewis in Cincinnati.

However, she also said that some states require vaccinations for health care workers and the Centers for Disease Control and Prevention recommends them for all health care employees. "There is certainly support for the health care provider to require the vaccination," she said.

Court Sided with Employer that Fired Employee

Pryor noted that in one case last year, the U.S. District Court for the District of Massachusetts said, "Health care employees are at high risk for influenza exposure and can be a source of the fatal disease because of their job. Numerous medical organizations support mandatory influenza vaccination for health care workers. The medical evidence in this record demonstrates that the single most effective way to prevent the transmission of influenza is vaccination."

In that case, the health care employee declined to take the vaccine because she was Muslim and the vaccine contained pork byproduct. The hospital offered a pork-free vaccine, but the employee refused to take the vaccine after learning that her religion purportedly had a moratorium on all vaccinations.

On Nov. 21, 2011, the employee's supervisor reminded the employee of the Dec. 1 deadline to be vaccinated. On the day of the vaccination, the employee told a nurse that she had a bad allergic reaction to the vaccine in 2007. The nurse encouraged the employee to submit medical documentation about her allergic reaction and granted the worker a temporary medical exemption pending review of her medical records. On Dec. 19, the occupational health department concluded that the employee's medical history did not qualify her for a medical exemption.

The employee met with the hospital's director of employee relations on Dec. 21. The worker asked for an interview for a medical record clerk position for which she had already applied. She was granted the interview but did not get the job. She also asked to be allowed to use her accrued earned time from Dec. 22 to Feb. 3, 2012, to find employment outside the hospital. That request was granted. After the worker's request for an interview, there were no positions outside of patient care for which she was qualified. At the end of the employee's leave, the hospital offered her an additional two weeks of leave and treated her termination at the end of the two weeks as a voluntary resignation, leaving her eligible to reapply for other hospital jobs in the future.

The court granted summary judgment for the hospital, finding that it reasonably accommodated the worker and that any further accommodation would have been an undue hardship. The risk of transmitting influenza to the hospital's vulnerable patient population would have been increased, the court noted. "Here, in light of the state's requirements and the hospital's understanding of the medical consensus on influenza vaccination, the hospital decided to achieve the safest possible environment for its patients," the court said. It noted that the plaintiff worked closely with patients, regularly sitting near or touching them as she worked on their admission to the hospital. "Had the hospital permitted her to forgo the vaccine but keep her patient-care job, the hospital could have put the health of vulnerable patients at risk," it said (Robinson v. Children's Hospital Boston, D. Mass., No. 14-10263 (April 5, 2016)).

However, many states have exemptions from vaccine requirements for health care workers, according to the National Vaccine Information Center, which advocates for the institution of vaccine safety in the public health system.

Religious Objections

Pryor said that whether there is a religious objection that should be accommodated depends on the employee's motivation.
"An employee does not have to prove that a traditional organized religion supports his or her belief," she said. Some have claimed that their religion is being vegan and they do not ingest any animal or animal byproducts, according to Pryor.

The EEOC stated in a 2012 informal discussion letter concerning religious objections to flu shots that Title VII of the Civil Rights Act of 1964 defines religion broadly to include not only traditional, organized religions but also religious beliefs that are new, uncommon, not part of a formal sect, only subscribed to by a small number of people or that seem illogical to others.

However, Jim Paul, an attorney with Ogletree Deakins in St. Louis, said that religious objections to getting a flu shot should be relatively rare.

If masks are used as an accommodation, he said the employees should be required to wear the masks at all times at work, even if they don't have patient contact, because the workers inevitably will interact with colleagues who will be near patients.

Disability-Related Objections

Some individuals may raise disability-related objections to flu shots, such as if they have allergies that could result in an adverse reaction to vaccinations or if they have autoimmune conditions, Wolff noted.

However, the duty to reasonably accommodate individuals with disabilities does not extend to individuals who pose a direct threat to others, unless the safety hazard can be reduced to an acceptable level.

"This is a complex, and sometimes gray, area of the law," said Rachel Conn, an attorney with Nixon Peabody in San Francisco, who recommended that employers consult with counsel before terminating someone's employment for refusing to take a flu shot.

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