By Gary Evans, Medical Writer

Healthcare facilities enacting flu shot mandates without some effort to reasonably accommodate healthcare workers claiming religious exemption could be open to a lawsuit, explains Douglas Opel, MD, assistant professor of pediatrics at the University of Washington School of Medicine in Seattle.

In light of recent court cases, healthcare facilities should consider exemption policies when they begin a mandated flu shot program, getting legal advice at that time.

“We found that hospitals prevailed in lawsuits when they developed ways to accommodate their employees’ religious views and still protect patients,” Opel tells Hospital Employee Health. “Getting advice at the time of developing a mandatory influenza vaccination program on how to accommodate employees is a wise strategy.”

Opel outlined case law and legal strategies in a recently published review article on the contentious issue.1

For example, six healthcare workers fired for refusing mandatory flu shots for religious reasons won back pay and offers of reinstatement from Saint Vincent Hospital in Erie, PA, according to the U.S. Equal Employment Opportunity Commission (EEOC).2 The hospital agreed to compensate the workers some $300,000 for lost wages and compensatory damages after the EEOC filed suit in September 2016.

In a similar case, Opel described a North Carolina health system that failed to provide religious exemptions from an influenza vaccination requirement. The resulting lawsuit, which alleged religious discrimination in violation of Title VII of the Civil Rights Act of 1964, was settled in January 2018. The healthcare system agreed to both compensate the employees and revise its policy on vaccination exemptions.

However, lawsuits related to religious exemptions to a flu shot mandate can be averted by making reasonable accommodations like stipulating that unvaccinated workers must wear a mask for patient care, he says.

“Title VII requires employers to reasonably accommodate an employee with a true religious belief unless doing so imposes an undue hardship on their business,” Opel says. “In other words, reasonably accommodating a religious belief has limits. Employers are not expected to accommodate to the point that doing so would pose an undue hardship, such as by heightening the risk of spreading illness.”

The EEOC’s working definition of the word “religion” includes “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Although the courts are not bound by the EEOC’s definition, it is broad enough to create “uncertainty” about the line between religious and philosophical objections, he noted in the paper.

Objection to Other Vaccines?

HEH asked Opel if healthcare workers can successfully challenge flu shot mandates on the grounds of religious discrimination, does that open the door to their declining other required immunizations for healthcare employment?

“Title VII simply prohibits an employer from discriminating against an employee on the basis of religion,” he says. “It is broadly applicable and not specific to any particular employer practice or policy.”

The answer may be surprising, but established healthcare vaccination programs for childhood diseases and hepatitis B would certainly be more difficult to challenge than the flu shot, which changes every season and must be administered annually.

Some of this seems to be more about style than substance, as Opel found that hospitals that are arbitrary in evaluating religious objections and inconsistently enforce deadlines leave themselves open to lawsuits.

One hospital lawsuit arose in part because workers who missed the vaccination deadline had a grace period. In contrast, the exemption request deadline was strictly enforced. Given this, it may be best to avoid even the appearance of discrimination to head off legal challenges.

“We did find that litigation is often inspired by employees feeling that the processes used to weigh their opt-out requests weren’t fair,” he says. “Hospitals can avert problems by allowing employees adequate opportunities to explain their beliefs, not inserting unnecessary administrative requirements or being unduly rigid with filing deadlines.”

Explain the reasons for denying exemption requests, and treat religious objectors with respect, he advises. Be aware that there may be legal challenges by workers who have been accommodated by hospital policy.

In one case, an employer required masks only when unvaccinated employees were near a patient care area, but their employee ID badges listed an “unvaccinated” status. An accountant whose job involved little patient contact objected, claiming that the sticker was stigmatizing, Opel noted. The parties in that case settled out of court.

For employees without patient contact, it might be reasonable to simply require them to stay home if symptomatic, he adds.

Hospitals that have made reasonable efforts to accommodate workers — including polices based on where they work — have won subsequent challenges to their flu immunization policies.

While these approaches can help to prevent lawsuits, healthcare facilities also should stress the safety of the vaccine and the importance of immunization. It is important to emphasize that healthcare workers can spread influenza one day before symptoms begin, he says.

REFERENCES

1. Opel DJ, Sonne JA, Mello MM. Vaccination without Litigation — Addressing Religious Objections to Hospital Influenza-Vaccination Mandates. N Engl J Med (Perspective) 2018; 378:785-788. DOI: 10.1056/NEJMp1716147.

2. EEOC. Saint Vincent Health Center to Pay $300,000 To Settle EEOC Religious Accommodation Lawsuit. Available at: http://bit.ly/2ibTFSg.