Healthcare employers should consider a recent trend when determining what safety requirements to impose on their employees. Recent settlements between healthcare providers and the Equal Employment Opportunity Commission show that even employers in the healthcare industry must consider accommodating their employees’ religious beliefs when enforcing mandatory vaccination policies.

On June 25, 2019, the EEOC announced that a Michigan hospital had agreed to compensate a medical transcriptionist $74,418 to settle claims arising from the hospital’s alleged failure to reasonably accommodate her sincerely held religious beliefs. The EEOC filed suit, stating that the hospital violated Title VII of the Civil Rights Act—which requires that employers reasonably accommodate employees’ sincerely held religious beliefs, unless that would cause an “undue hardship.” Specifically, the hospital rescinded a job offer to an applicant after she refused an influenza vaccine based on her religious beliefs against inoculation. The hospital’s policy allowed employees to wear masks in lieu of receiving the vaccines, but only if they had disabilities that prevented them from receiving flu vaccines. The hospital refused to extend this same accommodation to the job applicant. The fact that the hospital provided this accommodation for disabilities made it more difficult for the hospital to deny this accommodation when requested for a sincerely held religious belief.

This settlement is part of a growing trend. For example, on December 23, 2016, a Pennsylvania hospital agreed to pay $300,000 to settle a religious discrimination claim filed on behalf of six former employees who were terminated for refusing to get flu vaccines on religious grounds. In that case, the hospital required employees to receive seasonal flu vaccines, and at least allowed employees to request exemptions for medical and religious reasons; however, the hospital allegedly granted 14 exemption requests based on medical reasons but denied every single religion-based request. Two other similar lawsuits by the EEOC are pending.

These EEOC actions are consistent with longstanding EEOC guidance, which states that employers covered by the Americans with Disabilities Act and Title VII cannot require all employees to receive influenza vaccines without regard for their medical conditions or religious beliefs—even during a flu pandemic.

Further, federal regulations broadly define “religious” beliefs as encompassing “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Thus, a federal court in Ohio found it “plausible” that veganism constituted a sincerely held religious belief. Where a hospital discharged an employee after she refused to be inoculated with a flu vaccine due to her veganism, the court refused to dismiss the former employee’s claims for religious discrimination under Title VII.

That said, employers need not accommodate their employees’ religious beliefs where doing so would impose an “undue hardship” (i.e., more than a de minimis cost) on the employer. Factors relevant to determining whether an accommodation would cause an “undue hardship,” particularly in the healthcare context, include “the assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control, and potentially the number of employees who actually request accommodation,” the EEOC stated in an informal discussion letter. Thus, a federal court in Massachusetts found that granting an employee’s request to forgo a flu vaccination, while keeping her in a patient-care position requiring her to work in close contact with patients, would impose an “undue hardship” on the employer hospital because it would increase the risk of infecting already-vulnerable patients with influenza.

As our firm colleagues discussed last December, discrimination in the context of mandatory vaccination employment policies crops up not only in the context of religion, but also disability, and thus similar accommodation considerations must be made for qualified individuals with disabilities.

Takeaway

Even employers in the healthcare industry may be required to deviate from mandatory vaccination policies to accommodate an employee’s sincerely held religious beliefs. If faced with this question, please contact your counsel for further guidance.