It's that time of year again – flu season! This year, just as in years prior, the Centers for Disease Control and Prevention (CDC) recommends that all individuals 6 months and older receive the influenza vaccination (flu vaccine) to prevent the flu virus. The CDC also strongly recommends the flu vaccine for people at high risk of flu-related complications, including individuals aged 65 years and older, pregnant women and children younger than 2. Just last year, a record number of pediatric deaths were associated with the flu. As a result, many employers in the healthcare industry have instituted mandatory flu vaccination programs for employees. Employers with mandatory flu vaccination programs should make sure that any such program has an opt-out procedure available to employees where necessary based on an employee's medical needs or religious or spiritual beliefs.
Title VII of the Civil Rights Act of 1964 (Title VII) and applicable state and local laws require the accommodation of sincerely held religious or spiritual beliefs. Beliefs generally are considered to be religious if they address "ultimate ideas" about human existence and purpose, and they need not be "organized" religious beliefs in order to be protected. There are, however, limits on the definition of "religion." The Equal Employment Opportunity Commission (EEOC) guidance states that "[s]ocial, political, or economic philosophies, as well as mere personal preferences, are not 'religious' beliefs protected by Title VII." When an employer is on notice that an employee sincerely holds a religious or spiritual belief that conflicts with an employment requirement, that triggers a duty to engage in an interactive process with the employee to determine whether a reasonable accommodation can eliminate the conflict. This requires an exchange of information between the employer and employee and involves an assessment of the nature of the employer's business, the scope of the religious limitation(s) and whether an accommodation would cause undue hardship such as significant cost or burdens on the business and other employees. For employees concerned about certain flu vaccine ingredients, there may be variations of the flu vaccine that do not contain the ingredient of concern.
Similarly, the Americans with Disabilities Act (ADA) and applicable state and local laws require the accommodation of qualified employees who have disabilities that would prevent their receipt of the flu vaccine, unless doing so would pose an undue hardship on the employer. "Disabilities" are defined as physical or mental impairments that substantially limit one or more major life activities. The definition applies to persons with a history or record of such impairments and persons who are perceived by others as having such impairments. "Qualified employees" are those who hold the necessary degrees, skills and experience for the position and who can perform the essential functions of the position, with or without an accommodation. For example, as it relates to the flu vaccine, it may not be safe for an individual with Guillain-Barre syndrome to receive the flu vaccine, whereas there is generally no duty to accommodate fear about receiving the flu vaccine. Just as with religious accommodation requests, when an employer is on notice that an employee has medical issue or disability that would prevent his or her receipt of the flu vaccine, the employer is required to engage in an interactive process with the employee to determine whether a reasonable accommodation is available that would not pose an undue hardship on the employer.
For example, the Eighth Circuit, in Hustvet v. Allina Health System, recently concluded that an employer did not violate the ADA and Minnesota disability laws when it fired an employee who refused to get the rubella vaccine, on the basis that the vaccine requirement protects vulnerable patients. The former employee, an independent living skills specialist who worked with potentially vulnerable patients, had requested an exemption from her employer's measles, mumps and rubella (MMR) vaccine requirement on the basis that she had suffered severe cases of mumps and measles (notably not rubella) and had "many allergies and chemical sensitivities." The court rejected the former employee's failure-to-accommodate claim, finding that she had not shown that her chemical sensitivities or allergies limited her ability to perform major life activities. The court noted that she had never been hospitalized for an allergic reaction, had not visited an allergy specialist and had not sought significant medical attention when experiencing an allergic reaction. Rather, the court stated that the former employee has "garden-variety allergies to various items that moderately impact her daily living," which does not satisfy the disability standard under applicable law.
With the popularity of mandatory vaccination programs in the healthcare industry across the country, we are observing a spike in discrimination lawsuits based on an alleged failure to provide religious and medical accommodations with respect to flu vaccine requirements. Employers are encouraged to engage in an interactive process with employees who submit medical or religious exemption requests with respect to flu vaccine requirements and consult counsel prior to taking any adverse employment actions on the basis of an employee's submission of an insufficient medical or religious exemption request and failure to comply with a mandatory flu vaccination program.
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