17 Oct Can An Employer Require Employees to Get Flu Vaccinations?

by Jessica N. Childress                                                                        10.17.2016

Last month in EEOC v. Saint Vincent Health Center, the EEOC filed a lawsuit in the US District Court for the Western District of Pennsylvania (Erie Division), alleging that the Saint Vincent hospital violated Title VII of the Civil Rights Act by firing six hospital employees after the employees refused to receive a mandatory flu vaccination. In its complaint, the EEOC alleges that the hospital maintained a policy of requiring employees to receive a flu vaccination, unless the hospital granted an exemption to an employee based on a medical or religious reason. The hospital allegedly fired employees who had not been granted an exemption and who refused to receive the vaccination. According to the EEOC’s complaint, from October 2013 until January 2014, the hospital granted fourteen vaccination exemptions to employees requesting exemptions for medical reasons. However, the hospital allegedly terminated all employees requiring a religious exemption. The EEOC contends that the hospital’s actions violated Title VII of the Civil Rights Act for failure to provide a reasonable accommodation for employee’s sincerely held religious beliefs.

Title VII requires employers to grant employees a reasonable accommodation to practice his or her religion, if the reasonable accommodation would not present an undue hardship to the employer. In the past, the EEOC has offered insight on whether employers are permitted to compel all employees to take the influenza vaccine regardless of their sincerely held religious beliefs. In its technical assistance document, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (2009), the EEOC posed and answered the following question:

May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

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[U] nder Title VII of the Civil Rights Act of 1964, 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 (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Last year, the issue of reasonable accommodations came before the US Supreme Court in EEOC v. Abercrombie & Fitch Stores, Inc., 575 US_ (2015). In Abercrombie, the Supreme Court ruled in favor of the EEOC in a case against Abercrombie and Finch, ruling that Abercrombie’s failure to hire an applicant based on her religious garb violated Title VII’s religious discrimination provisions. In that case, the Supreme Court Court announced, “…to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice confirmed or otherwise, a factor in employment decisions.” It remains to be seen how the US District Court in Saint Vincent will apply the Abercrombie precedent.

In the meantime, as flu season is upon us, employers who require employees to obtain flu vaccines should tread carefully when denying a request for a reasonable accommodation based on an employee’s sincerely held religious belief. EEOC informal guidance has suggested, “Because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.”  Accordingly, prior to denying the request, employers who are considering denying an employee’s request for a reasonable accommodation should thoroughly assess how the request will present an undue hardship to the organization.

The Childress Firm will continue to monitor the development of the Saint Vincent case.

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