Can a health care provider force all employees to get flu shots, even over an individual's religious or medical objection? Generally, the answer is no. But employers should review their rights and their employees' rights to successfully navigate such issues.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of their religion. Employers must accommodate religious observances and practices, absent undue hardship. Their duty to evaluate accommodation requests is often triggered when an employee has a sincere religious belief that conflicts with a mandatory flu vaccination policy. 

The Equal Employment Opportunity Commission (EEOC) uses a very broad definition of "religion." It includes not only organized religions but also religious beliefs that are "new, uncommon, not part of formal church or sect, only subscribed to by a small number of people or that seem illogical or unreasonable to others," as well as non-theistic moral or ethical beliefs. Believe it or not, a federal court recently confirmed that veganism, in some circumstances, can constitute a religious belief that could exempt an employee from a flu shot requirement. So, an employee's refusal to get a flu shot may not be based on religion at first glance, but the courts might view it that way. Employers should, therefore, ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief.

Questioning a Religious Accommodation Request

If an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer can seek additional information. The EEOC, however, has suggested that employees can substantiate their beliefs in any form and may not require third-party verification by a clergyman or other source. For example, written materials or the employee's first-hand explanation may be sufficient to alleviate the employer's doubts about the sincerity or religious nature of the employee's professed belief. Because idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is needed, it does not have to come from a clergyman. Others who are aware of the employee's religious practice or belief could provide such substantiation.

Denying a Religious Accommodation Request

An employer may be able to deny an employee's request for religious accommodation if it can establish that the accommodation is not sought for religious reasons.

In Fallon v. Mercy Catholic Medical Center, a hospital worker claimed that his employer terminated him for failing to get a flu shot due to his religious beliefs. The U.S. Court of Appeals for the Third Circuit, however, held that the worker's anti-vaccination beliefs were not religious and that, as a result, Title VII did not protect the employee.

Although the employee in Fallon did not belong to any organized religious organization, he held strong personal and medical beliefs opposing the flu vaccine. His complaint alleged that he believed that he "should not harm" his own body and that the flu vaccine "may do more harm than good." In 2012 and 2013, Fallon sought and obtained exemptions based on his personal beliefs, which he explained in a lengthy essay attached to his requests for exemption. In 2014, however, his employer denied his request, explaining that its standards for granting exemptions had changed and asked for a letter from a clergyman to support his request. Fallon could not provide one. The employer suspended and ultimately terminated him for failure to comply with the flu vaccine requirements.

The court found that Fallon's beliefs were not religious because they: 1) did not "address fundamental and ultimate questions having to do with deep and imponderable matters," 2) were not part of a comprehensive belief system, and 3) were not manifested in formal and external signs. Rather, Fallon's concern was really about health effects of the flu vaccine because he did not believe the scientifically accepted view that it is harmless to most people. The court held that Fallon's belief, although sincerely held, was medical rather than religious, and did not occupy a place in Fallon's life similar to that of a more traditional religion. Accordingly, the court affirmed dismissal of the employee's claim.

Granting a Religious Accommodation

Once an employer determines that an employee's request for accommodation is sincerely based on religion, the employer must then consider how to best accommodate the employee. Simply letting the employee wear a mask during flu season may not be enough. The appropriate accommodation depends on a variety of factors, including whether the employee's position involves patient contact. 

In EEOC v. Baystate Medical Center Inc., the EEOC claimed that an employer violated Title VII when the only accommodation offered to an employee who refused to get a flu shot based on a religious belief was to wear a face mask at all times while working. But the employee was a recruiter in the human resources department, did not work in a building where patients receive care, and therefore did not have any direct contact with patients. 

Baystate asked the court to grant it summary judgment on the EEOC's complaint, arguing that the employee was ultimately fired not because of her religious opposition to vaccination but because she was unwilling to wear a mask at all times if she refused the vaccination. The court denied Baystate's summary judgment motion, holding that the reasonableness of the accommodation constituted a factual question that required a trial.

Additional Accommodations Employers Should Consider

• Modify the employee's work duties to avoid patient contact.

• Rearrange an employee's schedule to reduce patient contact. 

• Require the employee to wear a surgical mask.

Documentation

In light of the EEOC's recent activity on this issue, health care employers must explore what reasonable accommodations they can offer employees. If an employer denies a request for accommodation, it must document the justifications for the denial. Employers should keep records of what accommodations have been requested, considered, negotiated, and either granted or rejected. In addition, health care employers should provide training regarding reasonable accommodation under Title VII to their key personnel and ensure that they maintain reasonable accommodation policies and procedures that reflect Title VII requirements.