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Hospitals can get an immediate boost in health care worker vaccination coverage with mandatory influenza immunization policies. But before implementing a mandate, employers must answer an important question: Who will get an exemption?
A mandate without exemptions is a legal problem, says Joseph Lynett, JD, partner in the Disability Leave and Health Management Practice Group at Jackson Lewis law firm in White Plains, NY.
“To have a policy that does not permit exemptions runs a grave risk of violating Title VII [of the Civil Rights Act of 1964], if the employee needs an accommodation for religious reasons, and particularly the ADA [Americans with Disabilities Act] if the employee needs an exemption for medical reasons,” he says.
The U.S. Equal Employment Opportunity Commission (EEOC) found that “once an employer receives notice that an employee's sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.”
Employers can ask for verification of an employee’s “sincerely held religious belief,” but cannot require that verification to come from a member of the clergy or congregation, EEOC legal counsel Peggy R. Mastroianni said in a December 5, 2012 letter responding to an employee’s inquiry. Supporting information for the religious belief “could be provided by others who are aware of the employee’s religious belief or practice,” the EEOC has said.
The belief does not have to be an established religion. The EEOC notes that “idiosyncratic beliefs can be sincerely held and religious.”
For example, in February, an Ohio district court ruled that a vegan had a possible religious discrimination claim after she was fired for refusing a flu vaccine. Cincinnati Children’s Hospital Medical Center had turned down her request for a religious exemption.
The EEOC allows employers to require other infection control measures, such as wearing a mask, “if not done for retaliatory or discriminatory reasons.”
Lynett also advises unionized hospitals to negotiate with the unions before implementing a mandatory policy.
--Michele Marill, Hospital Employee Health