Articles, Newsletters and Advisories
(by Stephen A. Antonelli)
It’s that time of year again. The days are getting shorter, the weather is getting colder, and families are starting to think about the menu for their Thanksgiving dinners.
And I still haven’t gotten my flu shot.
It’s on my to-do list, I promise. It’s not that I don’t like going to the doctor, or that I am particularly afraid of needles, but when it comes to the flu shot, for some reason, I tend to procrastinate. Some employees who work in the health care industry do not have the option of procrastinating when it comes to getting a flu vaccine because their employer requires them to be vaccinated.
The Center for Disease Control (CDC), the Advisory Committee on Immunization Practices (ACIP), and the Healthcare Infection Control Practices Advisory Committee (HICPAC) recommend that all U.S. health care workers get vaccinated annually against influenza. This recommendation applies to physicians, nurses, nursing assistants, therapists, technicians, emergency medical service personnel and anyone potentially exposed to infectious agents that can be transmitted to and from health care workers and patients. As a result, many health care employers require their employees to get vaccinated annually.
Employers that mandate flu vaccinations should be sure to allow employees to request exemptions to their flu shot policies for medical reasons, including but not limited to, allergies to the vaccine or its components or a history of Guillain-Barré syndrome. Employers should also allow an exemption to employees with sincerely held religious beliefs that conflict with receiving the vaccination. Employers may then require employees who have been granted an exemption to wear a mask when interacting with patients or coworkers. Not surprisingly, mandatory flu vaccinations policies have been the subject of litigation, including several cases filed by the Equal Employment Opportunity Commission (EEOC).
Near the end of 2017, in Fallon v. Mercy Catholic Medical Center of Southeast Pennsylvania, 877 F.3d 487 (3d Cir. 2017), the U.S. Court of Appeals for the Third Circuit issued an opinion on the issue of whether an employer violated Title VII of the Civil Rights Amendment when it terminated an employee who declined a mandatory flu vaccine for sincerely held moral and ethical—but not religious—beliefs.
Paul Fallon was employed as a psychiatric intake worker with Mercy Catholic Medical Center. Fallon lost his job in 2014 because he refused to get a flu shot. Like many health care employees, Mercy Catholic required its employees to either obtain a flu vaccine, or to seek a medical or religious exemption from its policy. It also required its employees who had been granted an exemption to wear masks as an accommodation.
Fallon challenged Mercy Catholic’s policy by declining a flu shot. In support, Fallon cited to several of his sincerely held beliefs. For instance, Fallon believes that one should not “harm” his own body and that the flu vaccine “may do more harm than good.” Fallon also claimed that he would have violated his own conscience had he adhered to Mercy Catholic’s flu vaccine policy.
Fallon requested a religious exemption and in support thereof, cited his sincerely held beliefs. Mercy Catholic rejected his request and requested a letter from a member of Fallon’s clergy that explained his position. Fallon did not provide a letter from his clergy because he does not belong to a religious organization. Despite the denial of his request for a religious exemption, Fallon continued to violate the policy. As a result, Mercy Catholic suspended and then terminated his employment. Fallon filed suit against Mercy Catholic claiming religious discrimination. Specifically, Fallon claimed that Mercy Catholic violated Title VII of the Civil Rights Act because it failed to accommodate his sincerely held beliefs.
To establish religious discrimination, an employee must show that: he held a sincere religious belief that conflicted with a job requirement; he informed his employer of the conflict; and he was disciplined for failing to comply with the conflicting requirement. In this case, the second and third elements of Fallon’s claim were clear. The crucial issue was whether Fallon’s beliefs were sincerely held religious beliefs. According to the U.S. District Court for the Eastern District of Pennsylvania and the Third Circuit, they are not. The district court granted Mercy Catholic’s motion to dismiss and the Third Circuit affirmed in a precedential opinion.
In its opinion, the Third Circuit had to confront the “particularly difficult” task of determining whether Fallon’s beliefs required the protection of Title VII. The court relied on its own precedent in Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3d Cir. 1981) to determine the definition of religion.
According to the court, a religion:
- Addresses fundamental and ultimate questions having to do with deep and imponderable matters;
- Is comprehensive in nature in that it consists of a belief system as opposed to an isolated teaching; and
- Can often be recognized by the presence of certain formal and external signs, see Fallon, 877 F.3d at 491 (citing Africa, 662 F.2d at 1032).
Fallon’s beliefs do not appear to address “fundamental and ultimate questions having to do with deep and imponderable matters, nor are they comprehensive in nature.” Instead, he is merely worried about the health effects of the flu vaccine. In short, his concern was “a medical belief, not a religious one.”
Despite denying Title VII protection to Fallon’s beliefs, the court noted other courts have reached similar conclusions on the issue of whether certain anti-vaccination beliefs are not religious. It also noted, however, that anti-vaccination beliefs could be part of a broader religious faith and therefore may constitute a sincerely held religious belief. The court pointed out, for example, that Christian Scientists regularly qualify for exemptions from vaccination requirements, “In those circumstances, they are protected.”
Health care employers who require their employees to get vaccinated against influenza should be mindful of the rationale in support of employees’ requested exemptions. Employers should be sure to evaluate each requested exemption carefully and individually.
*Reprinted with permission from the 11/8/18 issue of The Legal Intelligencer. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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