Many health care providers mandate certain types of shots or inoculations for their employees to reduce the risk of the spread of serious illnesses such as the flu. Hospitals and long-term care providers have increasingly taken a hard line when employees have refused to get vaccinated because some of their licensing standards require certain vaccinations. For other health care providers, it is viewed as a best practice to reduce the spread of illness and disease among the infirm and elderly. However, as some recent cases illustrate, employers need to exercise caution in taking an adverse employment action when an employee refuses to get vaccinated. For example, if an employee cannot have a flu shot or other inoculation due to a disability, this will likely preclude an employer from taking an adverse employment action against the employee.
In addition, an employee may be able to lawfully refuse a vaccination if it would violate the employee’s religious tenets or beliefs. While more mainstream religious such as Hindu, Catholicism, Judaism, and Islam come to mind, there are many other belief systems or religions that may meet the broad definition of religion under Title VII or state law. A recent Ohio federal court case, Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., No. 1:11-CV-00917 (S.D. Ohio Dec. 27, 2012) demonstrates just how expansive the definition of religion may potentially be under federal and state anti-discrimination laws.
In this particular case, the plaintiff worked as a customer service representative for the hospital and was not a direct care provider. She refused to obtain a mandatory flu shot because it “violated her religious and philosophical convictions because she is a vegan.” As a vegan, she does not ingest any animal products or by products. The hospital unsuccessfully argued that veganism did not qualify as a “religion” and instead was more akin to a philosophy or dietary preference. However, it is worth noting that this was a motion to dismiss and the plaintiff’s claim may not survive a summary judgment motion, if discovery does not support her allegations.
This case not only raises the issue of how religion may be broadly defined under the anti-discrimination laws and what may constitute religious discrimination — it highlights the tension between mandatory vaccinations in health care settings and an employee ‘s desire not to be inoculated. Employers should review their inoculation policies and consider whether all employees of a health care institution should be required to be vaccinated or just those employees with direct patient contact. The number of vaccinations should also be reviewed to determine which are considered to be necessary. When an employee has a strongly held religious belief or has a medical condition that may cause a negative interaction with an inoculation, employers should also consider what types of reasonable accommodations may need to be made.
In sum, it is clear that these policies are not necessarily one size fits all and may need to be tailored based on an employee’s individual circumstances.
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