According to the Centers for Disease Control (“CDC“), influenza (flu) viruses are most common during the fall and winter. The CDC notes that the timing and duration of flu seasons can vary, but flu activity often begins to increase in October, with flu activity peaking between December and February. Flu activity can last as late as May. Many employers have mandatory flu vaccination policies. But, what if you have religious objections to a flu vaccination?
Title VII of the Civil Rights Act states that “[t]he term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. Under Title VII, employers are required to reasonably accommodate their employees’ religious objections to applicable work requirements, provided that the accommodation does not create an “undue hardship” for the employer. According to the Equal Employment Opportunity Commission (“EEOC“), “[u]nder federal law, employers must attempt a fair balance between an employee’s right to practice his or her religion and the operation of their business”. In determining the need for an accommodation, an employer may obtain additional information regarding an employee’s religious beliefs when that employee claims that a sincerely held religious belief should excuse him/her from participating in a mandatory flu vaccination program.
Numerous lawsuits have been filed over employers’ requirements that their employees obtain mandatory vaccinations. The reasons for such lawsuits vary. For example, in September 2016, employees of a hospital in Erie, Pennsylvania filed suit when the hospital challenged their religious beliefs, by claiming that the employees who were fired for refusing flu shots “did not provide proof of religious doctrine.” In June 2016, a human resources employee at a hospital in Massachusetts filed a lawsuit over a mandatory flu vaccination after she was terminated for complaining that wearing a surgical mask, in lieu of being vaccinated, made her job as a human resources specialist difficult when speaking with potential new hires.
There are a number of factors that must be considered. One consideration is whether the employee works in a health care setting. Within a health care setting, another consideration is whether the employee has direct patient care responsibilities. Another consideration, although not a religious consideration, could arise under the Americans with Disabilities Act, where an employee may be entitled to an exemption from a mandatory flu vaccination requirement based on a disability that prevents the employee from receiving the vaccine. However, moral and ethical conflicts that an employee has with a mandatory vaccination policy (unless also grounded in religion) is not grounds for seeking an accommodation under Title VII. To demonstrate religious discrimination, an employee must show that: (1) he/she holds a sincere religious belief that conflicts with a job requirement; (2) he/she informed his employer of the conflict; and (3) he/she was disciplined up to and including termination, for failing to comply with the conflicting requirement.
Requesting a religious accommodation to excuse participation in a mandatory flu vaccination program is not insubordination. The facts and circumstances of these cases all differ. If you have been subjected to a mandatory flu vaccination program and have religious objections which were not accommodated, your rights under Title VII (and state laws such as the New Jersey Law Against Discrimination and the Pennsylvania Human Rights Act) may have been violated.