EEOC Opposes Mandatory Flu Shots for Workers

The Equal Employment Opportunity Commission (EEOC) has taken an aggressive stance on mandatory flu shots, going after employers that fire workers who refuse the shot for religious reasons.

The EEOC has been "pressing employers to accommodate employees," said Kevin Troutman, an attorney with Fisher Phillips in Houston. "Employers should be prepared to conduct individualized evaluations of requests for accommodation based on religion and/or disability."

For example, a person might refuse immunization if his religion requires him to keep his body pure from everything that contaminates the body and spirit, and holds that such contaminants include vaccines.

Hospitals, health care centers and nursing homes often require employees to get flu shots. "Several states require hospitals to ensure that health care workers are vaccinated against influenza," noted Ivo Becica, an attorney with Obermayer in Philadelphia.

Under Title VII of the Civil Rights Act of 1964, an employer must accommodate sincerely held religious practices that may conflict with workplace rules, as long as the religious practice does not impose an undue hardship, noted Mark Fijman, an attorney with Phelps Dunbar in Jackson, Miss.

Undue hardship under Title VII "is a much lower standard than the Americans with Disabilities Act undue hardship defense to disability accommodation," he said. "Since 'undue hardship' in the religious discrimination sense of Title VII is a pretty low bar, generally a health care facility could easily meet this by presenting the danger to patients of catching the flu from a nonimmunized employee."

[SHRM members-only toolkit: Managing Through Flu and Other Epidemics in the Workplace]

EEOC Actions

The EEOC has taken the position that when an employee, such as an administrator, does not have direct contact with patients, it is not an undue hardship for that person to refuse a flu shot on religious grounds, Fijman added. Although the agency has taken this position with regard to flu shots, it has not made the refusal to take other types of shots a priority.

A mask is one accommodation sometimes granted to employees who refuse flu shots. There can be problems with this accommodation, though.

Stephanie Clarke, a recruiter in the HR department at Baystate Medical Center in Springfield, Mass., was granted the accommodation of wearing a mask while on the job. However, job applicants sometimes complained that they could not understand her when she spoke to them while wearing the mask. She would then remove the mask in order to be heard. Clarke asked her employer to find an alternative accommodation that would permit her to honor her religious beliefs, which prevented her from receiving the hospital's annual flu vaccination. 

Baystate placed her on indefinite, unpaid leave and then terminated her. The EEOC sued on June 2, claiming a violation of Title VII.

In a separate Sept. 22 claim, the EEOC sued on behalf of six employees of St. Vincent Health Center in Erie, Pa.—all of whom maintained they were fired for refusing flu shots based on their religious beliefs. In this case, the EEOC argued that the employees—a sonographer, a medical records clerk and four registered nurses—all were entitled to be accommodated, even though many of the people in these positions would have contact with patients. Two employees were Russian Orthodox, one was Baptist, one was Methodist, one followed Christian Mysticism, and the sixth said she was Christian but not affiliated with a particular church.

Earlier this year, the EEOC also sued Mission Hospital in Asheville, N.C., arguing that it failed to accommodate employees' religious beliefs when it required them to receive a flu vaccination annually. Employees could request an exemption but the request had to be made by Sept. 1. Several employees requested the accommodation after the deadline.

"An arbitrary deadline does not protect an employer from its obligation to provide a religious accommodation," said Lynette Barnes, regional attorney for the EEOC's Charlotte, N.C., district office. "An employer must consider, at the time it receives a request for a religious accommodation, whether the request can be granted without undue burden."

Secular Grounds

There are no protections for employees who refuse to get a flu vaccine on secular grounds.

A psychiatric crisis intake worker for Mercy Catholic Medical Center of Southeastern Pennsylvania sued the hospital when it fired him for refusing to receive a flu vaccination.

To support his refusal, the worker submitted to the hospital a letter and 22-page essay. Though he articulated many reasons for his unwillingness to be vaccinated, none of them were grounded in a sincere religious belief. Instead, he said in his lawsuit, Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, "I am not a member of an organized religion," referring to his belief system instead as "my conscience."

He added, "The influenza vaccine has not been shown to be effective, its benefits are grossly inflated, its risks are dangerously downplayed, the lethality of the virus grossly exaggerated and the industry that produces the vaccine is the biggest defrauder of the federal government under the False Claims Act." But none of this, including his statement that he was following his conscience, constituted a religious belief that had to be accommodated under Title VII.

Slightly more than half of Millennials (52 percent) and 42 percent of all adults are forgoing the flu shot this year. Many don't trust that it will keep them from getting the flu, according to a survey of 2,080 U.S. adults. CityMD, which provides vaccinations and is based in New York City, conducted the poll in mid-September.

Becica noted that in Prewitt v. Walgreens Co. a pharmacy technician was terminated after he refused to administer flu vaccinations. "Because the plaintiff's refusal to administer the shot was based on the fact that a close friend died after being vaccinated, the court held that his opposition was based solely on personal preference and denied the plaintiff's attempt to add a religious discrimination claim," Becica said.

Nevertheless, he cautioned that "employers cannot require documentation from a church or formal religious organization. Accommodations are required as long as the employee's beliefs are held with a sincerity equating that of traditional religious views."

Interactive Process for Accommodation

When there is a religious concern or a potential issue with the vaccine based on a disability, "employers should be prepared to conduct individualized evaluations of requests for accommodation," Troutman said.

"Listen to employees' concerns, consider what they are requesting and how the request would affect the employer's workplace. If the requested accommodation is not feasible, consider whether another accommodation may be feasible. Communicate clearly with employees requesting accommodation, respect their requests and document your evaluation, not just your conclusion.

"Particularly in this area, the process is as important as the ultimate result," he said.

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