Fall is in the air – when the air becomes crisp, our thoughts turn to Halloween, turkey and — thanks to constant reminders — and our annual flu vaccine.

Many health care facilities have implemented policies which require employees to be vaccinated. There are many reasons why this is a good practice, particularly for employees who work on the ‘front lines’ of patient care; however, we have recently been reminded that such policies must be carefully crafted and implemented to accommodate employees who cannot or do not wish to be vaccinated.

Up until this year, there was little EEOC activity and not much litigation over flu vaccines. But that has changed with two federal courts reaching the issue this year.

In April, a Massachusetts district court found that mandating a flu vaccine policy did not violate Title VII. See Robinson v. Children’s Hospital Boston, No. 14-10263 (4/5/2016). Ms. Robinson was fired for refusing the flu vaccine for religious reasons. The hospital did not permit religious exemptions because it concluded this would increase risk of transmission and wanted as close as possible to 100% of its staff vaccinated. The plaintiff worked in the ER and had direct patient contact. After she refused the vaccine, she was given time to look for a position in a non-patient care area, without success. She was later fired.

In finding for the hospital, the court held it had accommodated Ms. Robinson by trying to help her find another position – but concluded it was not obligated to create a position for her. The court also found that exempting her from the vaccine altogether was not reasonable.

Similarly, in Fallon v. Mercy Catholic Med. Ct., Civ. No. 16-00 834 (8/9/16), a Pennsylvania federal judge in early August dismissed a complaint of religious discrimination by a hospital employee fired for refusing a flu vaccine. The court agreed that the employer correctly denied Mr. Fallon’s request for a “religious” exemption based on his “moral conscience” against vaccines – finding that his conscience did not qualify as a “religious belief.”

Notwithstanding the decisions in Robinson and Fallon, the EEOC seems to have taken a slightly contrary view on this issue. In April 2016, the EEOC commenced an action against Mission Hospital in North Carolina, alleging that its mandatory flu vaccine program violated Title VII and that it failed to accommodate employees’ religious beliefs. The issue was a September 1 deadline to request an exemption from the vaccine. Employees who missed the deadline alleged they were denied the exemption. The EEOC felt that this “arbitrary deadline” was not a sufficient reason to deny the exemption. EEOC v. Mission Hospital, Inc.

And in a more recent lawsuit filed in June 2016 by the EEOC in Massachusetts. The EEOC alleged that Baystate Medical Center violated Title VII by failing to accommodate an employee who did not want to take the flu vaccine, by requiring her to wear a mask at work. The plaintiff refused the vaccine based on her Christian religious beliefs and claims that she was fired when she removed the mask, purportedly due to complaints that she was hard to hear and understand. Clarke v. Baystate Med. Center.

The EEOC did not view this accommodation as effective, stating: “For an accommodation to be meaningful under Title VII, it both must respect the employee’s religious beliefs and permit her to do her job effectively.”

There are several points which health care employers should note about the Baystate case:

  • The plaintiff in the Baystate case did not work in a patient care area. It is unclear, but maybe the EEOC would have been more sympathetic to the mask requirement if she had?
  • The Baystate plaintiff claimed she was not offered leave as an accommodation (where that was an accommodation offered in the Robinson case). Instead, she alleges she was terminated for violating the mask policy.

These allegations are also vigorously contested. Baystate denies that Ms. Clarke was suspended and terminated. Contrary to plaintiff, Baystate says that she was placed on a leave, refused to return to work, and thus was deemed to have resigned.

Takeaways:

It is not clear how these new cases will be resolved, but they do provide employers with some useful guidance as to how to design a flu vaccine policy which does not come under fire from the EEOC.

First, mandatory flu vaccine policies are generally lawful, with the caveat that the policy must allow for exemptions. It is the process of allowing exemptions to those policies which must be carefully managed and documented, namely:

  • There should be a published process to “opt out” for medical reasons. The employer can require medical proof that the employee cannot, because of an allergy or some other medical condition, take a flu vaccine.
  • There should also be a process to “opt out” for religious reasons. As confirmed in Fallon, an employer can require a letter from clergy to confirm the religious belief, as well as to confirm that the employee belongs to an organized religion. Documentation will be very important if you decide to deny a request. You want to be able to show there was an “interactive process.”
  • To make the process orderly, you can set a deadline for employees to request an exemption. However, that deadline may have to be relaxed, with reasonable limitations.

Finally, an important component of these exemptions is to consider in advance how you will accommodate those who cannot be vaccinated.

  • Are you going to allow them to work with a mask? Is that feasible?
  • Are you going to reassign them to a different position? As in Robinson, are you going to assist them in looking for a position?
  • Are you going to place them on leave? If so, will that be paid or unpaid?
  • Will you fire employees who refuse the vaccine and cannot be accommodated? Will those employees be eligible for rehire?

It remains to be seen how the district court will rule in the Clarke or Mission Hospital lawsuits; however, these lawsuits emphasize for healthcare employers the importance of putting a process in place to fully vet and analyze exemption requests.

Remember: your judgment about whether an exemption will be denied, or as to what accommodations to provide will often be analyzed in hindsight, which is always “20/20.” So, be careful as to how you handle the issue.