Hospitals that require caregivers to be immunized against influenza are regularly sued to force them to exempt employees on religious grounds, but last week a New Jersey court turned the usual argument for exemption on its head by ruling in favor of a former worker whose objections to vaccination were purely secular.
The question before the court was not whether a hospital can lawfully fire an employee who refuses a flu shot, but whether under New Jersey’s particular statute and regulations such a refusal is “misconduct connected with the work” that would disqualify the terminated employee from collecting unemployment compensation benefits for eight weeks. The Appellate Division of the New Jersey Superior Court decided in Valent v. Board of Review, No. A-4980-11T2 (June 5, 2014) that benefits must be paid without such a disqualification. The court also added comments to its decision indicating it would be “unconstitutional” for New Jersey to consider it misconduct for an employee to refuse immunization for secular reasons when the hospital would not have fired the employee if she said her refusal was based on religious grounds.
The case concerned a registered nurse who had been employed for several years by Hackettstown Community Hospital. The hospital’s parent corporation issued a mandatory immunization rule to prevent the spread of flu to patients, residents, healthcare workers, their families and the community. Employees claiming a documented medical or religious exemption could decline the vaccine, but were required to wear a facemask during the flu season. Failure to comply with the policy could result in progressive discipline up to and including termination.
The nurse in this case refused to be vaccinated for the flu. She did not assert an exemption based on medical or religious reasons, but she did agree to wear a mask during flu season. Despite this, the hospital terminated her employment. She applied for unemployment compensation, and during the administrative process was initially denied benefits, then awarded them, and then denied again on the ground that her refusal to be vaccinated was “misconduct connected with the work” within the meaning of N.J.S.A. 43-21:5(b). This meant she would be disqualified from receiving benefits for eight weeks.
The nurse brought a pro se appeal to the Appellate Division of the New Jersey Superior Court, arguing that she complied with the material provisions of the vaccination policy and that deeming her act “misconduct” while endorsing the hospital’s right to exempt someone who does the same thing for religious reasons violated her right to freedom of expression under the First Amendment of the U.S. Constitution. The court agreed and held that disqualifying the nurse based exclusively on her refusal to comply with her employer's flu vaccination policy was “arbitrary, capricious, and unreasonable.”
The court pointed out that a New Jersey regulation defined "misconduct" for unemployment compensation purposes as an act that is “improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee.” The court held that the hospital did not sustain its burden of proving that the nurse's refusal to abide by the flu vaccination policy constituted such misconduct. That determination could presumably have resolved the appeal without requiring the court to consider the nurse’s constitutional argument, but the court went on.
The hospital’s acceptance of a religion-based exemption, the court said, “irrefutably illustrates that the flu vaccination policy is not based exclusively on public health concerns.” Without any discussion of whether the hospital had adopted the exemptions to provide for religious accommodations required by Title VII or disability accommodations required by the Americans with Disabilities Act, the court said the hospital’s medical and religious exemptions “are facially unrelated to public health issues, patient safety-concerns, or scientifically valid reasons for the containment of the flu virus.” Therefore, it concluded, the “religion exemption merely discriminates against an employee's right to refuse to be vaccinated based only on purely secular reasons.” Citing U.S. Supreme Court decisions for the proposition that government cannot prefer one religion over another, the New Jersey court said that by denying the nurse unemployment benefits “based only on her unwillingness to submit to the employer's religion-based policy, the Board violated appellant's rights under the First Amendment.”
While the court’s constitutional analysis will likely be controversial, given the way New Jersey’s unemployment compensation statute is interpreted by state regulations and the state’s strong public policy in favor of supporting the unemployed, its decision to award benefits to the nurse appears to be correct. It is doubtful whether hospitals that have or are considering flu immunization requirements should regard the discussion of constitutional law issues in Valent as a major obstacle. Discussions in court opinions that are not necessary to the outcome are referred to as “dicta” and are not regarded as having authority as precedent in later cases. Sometimes dicta, such as the discussion of constitutional law in Valent, turns out to have a persuasive effect on other decisions, and sometimes it is more or less ignored in future cases.
It remains to be seen whether another court will extend Valent’s constitutional reasoning to invalidate the immunization policy of a government hospital or a private hospital outside the unemployment compensation context – and if so whether higher courts would affirm such a decision.