According to the Centers for Disease Control (“CDC”), the United States experiences a flu season each year. With this year’s flu season considered one of the worst since the 2009-2010 pandemic, many employers wish to implement policies to protect the workplace and wonder whether they can implement policies mandating vaccination for their employees. This desire is particularly present in healthcare because those employees are charged with protecting patient safety and more often exposed to patients with compromised immunity.

Recent decisions and enforcement actions demonstrate the challenge in balancing employers’ interests such as patient safety with the employees’ rights. Also, these decisions and actions provide guidance for employers in managing the resistance by employees to policies that potentially impose on their religious, personal, ethical, and moral beliefs.

Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania

Fallon was employed by Mercy Catholic Medical Center as a psychiatric crisis intake worker. Mercy’s policy required its employees to either obtain a flu vaccination or submit an exemption form for medical or religious reasons. In 2012 and 2013, Fallon requested and received religious exemptions and, as an accommodation, wore a mask during flu season. In 2014, he was denied a religious exemption after Mercy changed its policy concerning exemptions.

Fallon sues Mercy for religious discrimination in violation of Title VII.

Under Title VII, in order to establish religious discrimination, the employee must show that (1) he or she holds a sincere religious belief that conflicts with a job requirement, (2) he or she informs their employer of the conflict, and (3) he or she was disciplined for failing to comply with the conflicting requirement.

The Third Circuit Court of Appeals affirmed the District Court’s decision to dismiss Fallon’s complaint for religious discrimination in violation of Title VII and held that his beliefs regarding the flu vaccine were not protected religious beliefs under Title VII. The court reasoned that Fallon’s views were based on personal beliefs regarding the health effects of the flu vaccine, the disbelief of scientifically accepted views regarding the vaccine, and the desire to avoid the vaccine rather than deep and imponderable matters. They were not comprehensive in nature such that they were grounded in religion.

Since January 1, 2018, the EEOC has filed suit and reached substantial settlements against several employers for alleged religious discrimination in violation of Title VII for failing to accommodate requests for religious exemptions for the flu vaccine. For instance, on January 12, the EEOC reached a settlement with Mission Hospital, Inc., a North Carolina Corporation based in Asheville, NC for $89,000.00 to settle a religious discrimination lawsuit alleging that Mission Hospital violated Title VII when it refused to accommodate and fired employees who refused to have the flu vaccine based on religious beliefs. Mission Hospital’s conciliation agreement with the EEOC requires it to revise its immunization policy and permit employees to request an exemption during the time that the flu vaccines are to be received. Most recently, on February 14, the EEOC filed suit against Memorial Healthcare, a provider in Michigan, alleging that it violated Title VII when it rescinded a job offer because of the applicant’s religion and need for a religious accommodation related to the flu vaccine. Specifically, Memorial revoked its job offer when the applicant, a medical transcriptionist, objected to the flu vaccine.

In the wake of these recent lawsuits, how should employers manage requests for an exemption to the flu vaccine and are policies requiring the flu vaccine per se violations of Title VII? Although such policies are not per se violations of Title VII, employers must be mindful of their policies and make determinations on a case-by-case basis. Once an employer determines that an employee has a sincerely held religious belief, Title VII requires the employer to reasonably accommodate an employee’s religious belief. The duty to reasonably accommodate exists unless the employer demonstrates that providing the accommodation creates an undue hardship on the employer’s business. A few pertinent takeaways for employers concerning this issue include:

  • Whether the accommodation creates an undue hardship is a burden shifting framework, meaning that the employer has the burden to establish undue hardship;
  • Review and revise, if needed, the employer’s policy for requesting exemptions;
  • Be prepared to discuss and explore reasonable accommodations;
  • Whether an employee has a sincerely held religious belief is determined on a case-by-case basis; and
  • It is not best practice to request a letter from a minister or other clergy member; there are other means that the courts have deemed acceptable to support a request for an exemption.