This past June, when flu season was still just a sneeze on the horizon, Health Law Alert reported on how the Equal Employment Opportunity Commission (“EEOC”) was suing a Massachusetts hospital for religious discrimination over its policy of mandatory flu shots.

While not as infectious as the influenza virus itself, the EEOC’s litigation over this issue also appears to be spreading throughout the country. In EEOC v. Saint Vincent Health Center, the EEOC has filed suit against a Pennsylvania hospital, alleging the facility violated Title VII of the Civil Rights Act (“Title VII”) by failing to accommodate the religious beliefs of six employees and terminating their employment.

According to the EEOC’s lawsuit, in October 2013, Saint Vincent Health Center implemented a mandatory seasonal flu vaccination requirement for its employees unless they were granted an exemption for medical or religious reasons. Under the policy, employees who received an exemption were required to wear a face mask while having patient contact during flu season instead of receiving the vaccination.

In its lawsuit, EEOC alleges that the six employees requested religious exemptions from the flu vaccination requirement, and that the facility denied their requests. When the employees continued to refuse to get a flu shot, they were fired. The lawsuit makes a point of noting that during the same period, the hospital granted 14 vaccination exemption requests based on non-religious medical reasons.

In addition to this newest case in Pennsylvania, and the one in Massachusetts, the EEOC also has filed a similar lawsuit against a hospital in North Carolina for failing to accommodate employees’ religious objections to mandatory flu shots.

Title VII prohibits employment discrimination based on religion and imposes on employers a proactive duty to accommodate sincerely held religious practices that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer. For purposes of religious accommodation under Title VII, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a much lower standard than the Americans with Disabilities Act undue hardship defense to disability accommodation.

Whether the EEOC or the health care facilities will prevail in these lawsuits will likely hinge on whether it is an undue hardship to offer an accommodation to a policy aimed at protecting the health and safety of patients. In the Massachusetts and Pennsylvania cases, an accommodation of wearing a face mask to prevent contagion was refused by employees. In the North Carolina case, the failure to accommodate claim is based on the employee requesting an exemption after the deadline for getting a flu shot already had passed.

According to the Centers for Disease Control and Prevention, the flu is highly contagious and people with the flu can spread it to others up to about 6 feet away. Most experts think flu viruses are spread mainly by droplets made when people with flu cough, sneeze or talk. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. Less often, a person might also get the flu by touching a surface or object that has the flu virus on it and then touching their own mouth or nose. While the effects of the flu on most people are not life-threatening, the CDC notes that severe cases of the flu can result in death for some people, such as the elderly, young children and persons with certain health conditions, including weakened immune systems.

In August of this year, a federal court in Pennsylvania dismissed a similar lawsuit brought by a hospital employee in Fallon v. Mercy Catholic Medical Center. In dismissing the plaintiff’s Title VII religious discrimination, the court’s opinion focused on the fact the employee’s secular objections to receiving a flu shot simply were not entitled to the religious protections of Title VII:

In sum, Fallon clearly fails to state a claim for religious discrimination under Title VII. He does not belong to a religious congregation, nor does he claim that his reasons for refusing to be vaccinated are based on “religious beliefs,” sincerely held or otherwise. To the contrary, Fallon’s stated opposition to vaccinations is entirely personal, political, sociological and economic — the very definition of secular philosophy as opposed to religious orientation. To adopt Fallon’s argument that he need only show a strongly held moral or ethical belief in lieu of a sincere religious belief would contravene Third Circuit and Supreme Court precedent and would potentially entitle anyone with “strongly held” beliefs on any topic to protection under Title VII’s religious discrimination provision.

However, it remains to be seen whether the court’s ruling in Fallon will be of much help to the Pennsylvania hospital in the EEOC’s latest lawsuit. Title VII and courts generally construe religion very broadly, and in religious discrimination cases, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice.