As we move deeper into
November, we are on the cusp of the dreaded cold and flu season. Nasty strains
of these viruses have been known to decimate workplaces, virtually shutting
down operations for days at a time. One possible defense to this disruption is
to require your employees to get flu shots. Not only would such a requirement increase
productivity, but it would improve employee health and the health of those
clients with whom the employees interact. Sounds like a win-win, right? Is such
a requirement lawful?
This question is being
resolved in a Pennsylvania court, in which the Equal Employment Opportunity
Commission, the agency in charge of enforcing federal employment laws, has filed
a lawsuit against a hospital that fired an employee who refused to receive
flu shots based on religious objections.
The EEOC has posted a Q&A on its
website discussing whether it would be lawful for an employer to require
employees to receive a flu shot, and wrote that under Title VII, “once an
employer receives notice that an employee’s sincerely held religious belief,
practice, or observance prevents him from taking the influenza vaccine, the
employer must provide a reasonable accommodation unless it would pose an undue
hardship as defined by Title VII.” The EEOC also noted that an employee may be
exempted from receiving a flu shot based on a disability recognized under the Americans
with Disabilities Act (ADA).
This suggests that the EEOC
would find a mandatory flu shot requirement to be lawful, as long as employers
accommodated any objections due to religious beliefs or disabilities. In the
Pennsylvania case, the EEOC is alleging that the employer failed to accommodate
the religious beliefs of employees who were opposed to receiving the shot based
on these beliefs.
One of the employees, who was
a nurse, was required to receive a vaccination if she wanted to work in the
OB/GYN department of the hospital. When she refused to receive the vaccine, the
hospital attempted to accommodate her religious concerns, which Title VII
requires employers to do, and allowed her to work in another department if she
wore a surgical mask. She refused to do this, which caused the hospital to fire
her. The EEOC argues that this violated Title VII, alleging that the hospital
did not make a sufficient accommodation for her religious beliefs.
Whether the EEOC will be
successful will largely turn on the facts of the case. Important questions will
be to what extent the hospital went to accommodate the employees’ religious
objections, whether the employees’ religious objections were “sincerely held,”
and whether the employees provided proof of these beliefs to the hospital.
It is important to remember
that although Title VII requires employers to accommodate their employees’
“sincerely-held” religious beliefs, if this accommodation imposes an undue
hardship on the employer, it does not have to provide the accommodation. The
hardship does not have to be as great
as it is for the Americans with Disabilities Act.
So, the takeaway from this case
is that employers can probably require employees to receive vaccinations.
Trouble only arises if the employee has a religious or a health-related reason
not to receive the vaccine. In such a situation, an employer may want to
contact an
experienced attorney for advice.
