Nurse’s Refusal to Administer COVID-19 Vaccine May Be Protected

Allen Smith, J.D. By Allen Smith, J.D. April 15, 2021

An employer whose onsite nurse refuses, for religious reasons, to administer a COVID-19 vaccination must offer the employee a reasonable accommodation under Title VII of the Civil Rights Act of 1964. However, the employer doesn't have to make changes that would result in an undue hardship.

An employee might have religious beliefs that prohibit the administration of medications manufactured using lab-replicated fetal cells, such as the Johnson & Johnson COVID-19 vaccine. Federal health agencies have called for a pause in the use of this single-dose vaccine after six recipients out of 7 million in the U.S. developed a rare blood-clot disorder within two weeks of vaccination.

"Such religious beliefs must be sincerely held to qualify for protection under Title VII," said Robin Samuel, an attorney with Baker McKenzie in Los Angeles. When employees raise sincerely held religious beliefs as an objection to the performance of work duties, employers subject to Title VII must consider whether the religious beliefs can be reasonably accommodated without constituting an undue hardship to the business.

Possible Accommodations

An employer might consider a range of accommodations under Title VII, according to Nathaniel Glasser, an attorney with Epstein Becker Green in Washington, D.C. These might include:

  • Reassigning the objecting medical professional to other duties.
  • Allowing the individual to make voluntary shift swaps to avoid vaccination duties.
  • Laterally transferring the individual.
  • Placing the individual on leave.

"A reasonable accommodation does not necessarily mean a total accommodation or providing the individual's preferred accommodation," he added.

If only certain vaccines are objectionable to the employee, one accommodation would be to assign him or her to administer non-objectionable vaccines, Samuel said.

Undue Hardship

According to Glasser, examples of undue hardship brought about by an accommodation request include the following:

  • The employer must hire another worker to administer vaccines.
  • The rescheduling of other workers results in significantly increased overtime costs.
  • A nurse in a rural community is the only professional qualified to administer vaccines but refuses to do so for religious reasons.
  • An employee's refusal to administer vaccines results in the spoliation of many doses.

"Practically speaking, given the low showing required for undue hardship in the religious discrimination context, private employers typically can reject most requests for religious accommodation in the workplace," Samuel said.

If a medical professional's job duties normally include giving vaccinations, arguably there is no duty to remove an essential job function, said Matthew Deffebach, an attorney with Haynes and Boone in Houston and Costa Mesa, Calif.

The Supreme Court has found that implementing schedule changes, overriding seniority systems or collective bargaining agreements, or having other employees take on additional work constitute undue hardships in the religious accommodation context, Samuel stated.

But he said "a considered, flexible approach is best for employee morale and claim mitigation. Employers should take the time to talk to employees who object, clarify why the employees object to administering vaccines and attempt to provide reasonable accommodations to the extent feasible."

"The trick here is to not just assume accommodation is not possible but to actually see what is possible and engage the objecting employee," said Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C. Document these conversations and efforts, she noted.

Other Legal Protections

State anti-discrimination statutes provide similar—and sometimes greater—protections than Title VII against religious discrimination in employment. Make sure you are familiar with the statutes in your state.

In addition to Title VII and state anti-discrimination laws, medical professionals could refuse to administer vaccines based on right-of-conscience laws that some states have adopted, said Robert Neiman, an attorney with Much Shelist in Chicago.

"These laws allow medical professionals to not participate in medical procedures to which they have a moral objection," he said.

If the employer receives federal funding, various federal conscience laws may come into play, Samuel said. The federal conscience laws include the Church Amendments and the Coats-Snowe Amendment (Section 245 of the Public Health Service Act). The Church Amendments were enacted in the 1970s to protect the conscience rights of individuals and entities who object to performing or assisting in the performance of abortion or sterilization procedures if doing so would be contrary to the provider's religious beliefs or moral convictions. The Public Health Service Act prohibits the government from discriminating against any health care entity on the basis that the organization refuses to undergo training in the performance of induced abortions. Employees may file complaints with the U.S. Department of Health and Human Services (HHS).

Under the Obama administration, the HHS Office for Civil Rights enforced a 2011 conscience rule based partly on these laws. This rule prohibited discrimination against certain health care providers because of the provider's refusal or willingness to participate in abortions contrary to or consistent with the provider's religious beliefs or moral convictions, noted Linda Hollinshead, an attorney with Duane Morris in Philadelphia. "The extent to which a health care provider could be successful in arguing that being required to administer the COVID-19 vaccine is akin to cooperating in the original act of abortion remains to be seen," she said.

The Trump administration expanded the conscience rule, but the expanded rule never went into effect, as a federal court vacated it.

Employees of the federal government or certain state governments also may assert that the federal or state Religious Freedom Restoration Acts protect their religious expression, Samuel said. These employees might assert First Amendment violations if their government employers violate their religious rights through work rules.

Even private employers' workers may have some First Amendment protections if they are denied participation in public programs or benefits as a result of their religious beliefs, Samuel noted. For example, if an employee refuses to administer a vaccine for religious reasons and is fired as a result, the employee may have a First Amendment right to receive unemployment insurance benefits despite having refused to carry out his or her employer's lawful work instructions.



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