Even with the peak of the influenza season behind us, employers have good reason to be concerned about the flu in the workplace. It poses a health risk that no business can take lightly, and those in the health care or child care fields, for example, face especially high stakes in deciding how to mitigate the risk of infection. Vaccine coverage has also become a matter of increasing public concern. While the Centers for Disease Control and Prevention recommends that all U.S. health care workers get vaccinated annually against influenza, the latest data show that only 64 percent of them get the vaccine. For one reason or another, many employers have instituted policies requiring employees to receive the vaccine. A recent lawsuit alleging religious discrimination, however, highlights the importance of a cautious and flexible approach to vaccination policies where religious beliefs might be implicated.
In the lawsuit, the Equal Employment Opportunity Commission (EEOC) claims that Mission Hospital in North Carolina violated Title VII in failing to accommodate employees’ religious beliefs and firing them for refusing vaccination. Among the claimants are a Christian intake clinician and a Muslim psychiatric technician. The hospital’s policy required employees to receive a flu vaccination annually by no later than December and further provided that any requests for exemptions made after September 1st would be denied as untimely. When a group of employees applied for religious exemption after the deadline, the hospital denied their request and later fired some of the employees. In support of its lawsuit, the EEOC stated that an “arbitrary deadline does not protect an employer from its obligation to provide a religious accommodation.” The EEOC seeks back pay, compensatory damages, and punitive damages, while Mission Hospital has maintained that its policy was consistent with best clinical practices and its employees’ rights.
The legal standard for religious accommodations comes from Title VII of the Civil Rights Act of 1964. Under Title VII, once an employee provides notice that a sincerely held religious belief or observance requires an accommodation, the employer has to provide it unless doing so would create an undue hardship.
The first thing to consider is that historically, Title VII defines religion broadly. Also, the EEOC compliance manual states that an employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held belief. Where an employer has an objective basis for questioning the religious nature or sincerity of a practice, however, they may ask for supporting information. The EEOC also admits that social, political, or economic philosophies are not “religious” beliefs protected by Title VII.
The second consideration is whether an accommodation would result in undue hardship. In essence, Title VII defines “undue hardship” as “more than a de minimis cost.” For example, administrative costs or costs involved in rearranging schedules are not considered to create undue hardship. Because the effects of granting accommodations could be quite complicated, especially for health workers, employers should consider a variety of circumstances such as the public risk posed at a particular time, the availability of effective alternative means of controlling infection, and the number of employees who have requested accommodation.
INSIGHTS FOR EMPLOYERS
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.