On 28 April 2016, the United States’ Equal Employment Opportunity Commission (EEOC), via its North Carolina branch, filed a complaint in federal district court against Mission Hospital for failing to accommodate three employees’ religious belief when implementing its requirement that employees be vaccinated against influenza. I want to examine some of the facts behind the EEOC and influenza vaccines.
While in one of the cases the hospital could have been more accommodating, by and large the EEOC’s intervention in the case is unfortunate and misguided. At this point, the case is in the fact-finding stage, with trial only due in October 2017. I hope that before that the EEOC will reconsider its position.
Hospitals are almost certainly not required to offer any religious exemption from influenza mandates under the Civil Rights Act of 1964, and if they do, setting a procedure to do so and a timeline before influenza season is very reasonable. The EEOC was wrong to attack the policy: its attack can undermine the influenza mandate and doing so can put vulnerable people at risk.
The description below is based on the complaint and the response. Obviously, additional facts not known yet can turn up during discovery.
Mission Hospital required staff to receive influenza vaccines annually, no later than December 1, since at least August 2010. Hospitals adopt influenza mandates to protect vulnerable population and reduce the mortality and harm that hospital acquired influenza can cause: it’s a health and safety regulation, with a reasonable basis (pdf). (See Note 1)
The hospital allowed employees to request a religious exemption, and required that it be filed by September 1. This suit addresses three employees who requested an exemption later than that date and were denied for filing late. Note that all of these employees started working after the influenza mandate was adopted. In other words, they came in when the rule was that employees need to be vaccinated by December 1, unless they filed for an exemption by September 1.
Christine Bollela was hired in May 2012 as a preschool teacher in Mission Hospital. Ms. Bollela is a member of a church that believes, apparently, in faith healing (though the response points out that the church in question hosts flu clinics all over the United States).
She agreed to be vaccinated the first year, claiming she was not aware of the religious exemption, but then requested a religious exemption on November 19, 2013. She was denied an exemption for filing late, was suspended without pay on December 2, 2013 after she failed to receive an influenza vaccine, and was terminated from her job two weeks later for the same reason.
Note that Ms. Bollela, a preschool teacher, is working with young children.
In the second case, Melody Mitchell was hired in August 2014 as a psychiatric intake clinician. Her religious claim is not as convincing:
[infobox icon=”quote-left”]Mitchell is a Christian who closely adheres to the teachings of Jesus Christ. Mitchell believes based on the Bible that her body is a temple and putting vaccinations in her body is wrong and disrespectful to God. Mitchell believes it is God’s job to protect her from illnesses. Mitchell has not received a vaccination or immunization since childhood.[/infobox]
Since the Civil Rights Act of 1964 allows the employer to probe the sincerity of the religious belief, there may be room for the employee to examine Melody Mitchell’s faith. While the employer cannot judge the content of the belief, this language raises more question marks than Ms. Bollela’s belief in faith healing.
In the third case, Titus Robinson was hired as a psychiatric technician in April 2013. According to the complaint, Mr. Robinson
[infobox icon=”quote-left”]…believes he should not be subjected to vaccinations/inoculations on the grounds that his body is a temple and natural herbs are used for healing the body. Robinson believes vaccinations and inoculations are artificial, unproven, and unsafe medical processes which are contrary to his religious beliefs.[/infobox]
He bases his belief on his Muslim faith. While Islam is not generally against vaccines, if an individual believer sincerely believes the tenet of his faith conflict with vaccines, our federal jurisprudence protects that belief. But like Ms. Mitchell, the language above at least raises suspicion that Mr. Robinson’s main reasons for opposing vaccination are not religious, but rather safety concerns and a preference for alternative medicine.
It’s impossible to be sure from the complaint and response alone, but this is an area where examination of sincerity may lead to rejection of the exemption anyway. The EEOC’s guidance suggests the employer has substantial leeway in assessing sincerity on this (see EEOC Compliance Manual 13 (Jul. 22, 2008) (pdf)).
Robinson also claimed he filed a document titled “Declaration of Vaccination Exemption” in April 2013 asking for a religious exemption. This was rejected, and he only filed the official form on December 5, 2013, when it was rejected as untimely.
The hospital described the document Robinson initially filed as “a nonsensical document taken from the Internet that was captioned Declaration of Vaccination Exemption.”
The complaint also mentions Chelsea Kouns, a Daoist, who believes in strict veganism and objects to the animal based ingredients in the vaccines.
So what we have is a mixture of people with seemingly sincere religious beliefs against vaccines and people whose claims that their opposition is based on their religion may turn out to be, on examination, less sincere. Again, it’s impossible to be sure from the documents alone.
Title VII to the Civil Rights Act of 1964 prohibits discrimination in the workplace if it’s based on a number of prohibited classifications, including religion. Employers are required to provide reasonable accommodation for religious beliefs, unless that will impose “undue hardship,” which is a very low bar – employers don’t have to give accommodations if it will require more than de minimis costs.
I have, in the past, pointed out that an employer can justifiably refuse religious exemptions because these impose more than de minimis cost, since they increase the chances a patient will die or fall ill.
In Ms. Bollela’s case, for example, she works with young children. While the influenza vaccine is not a complete bar to getting influenza, it can dramatically reduce the chances she will get – and transmit – influenza to her young charges. Allowing her to care for young children without that protection may lead to a young child falling ill – even dying. Especially if she works with babies too young to be protected. A dead or harmed patient or child is not a de minimis cost. In other words, Mission Hospital could make a case for not providing any exemption.
But Mission Hospital did provide a religious exemption, probably on the grounds that the number of employees using it will be small enough that the patients will still be mostly protected (or from the mistaken view that they have to provide one).
Mission Hospital requires the employees to file an exemption request form and sets a September 1 deadline. The response to the complaint explains that:
[infobox icon=”quote-left”]…its September exemption request deadline is heavily advertised each year to all Mission employees well in advance of that deadline.[/infobox]
It’s unclear why a well-advertised deadline for an exemption makes the accommodation less reasonable. Flu season can start in October but its peak is usually December through February. A deadline of December to get vaccinated makes sense, given that. In fact, an earlier deadline would be completely justifiable.
An earlier deadline for submitting exemptions – before the vaccination deadline – allows the hospital to examine the exemptions requests, and if necessary work to determine sincerity. It’s not a discriminatory procedure. It’s not unduly burdensome to meet a deadline. These three employees joined the hospital when the mandate – and the exemption procedures – were already in place, so it’s not even a situation where the mandate was imposed on them by surprise after they have worked for the hospital.
Again, as long as an influenza mandate is a reasonable health and safety requirement, the employer would not even have to exempt anyone. The EEOC had, in the past, upheld a refusal to exempt employees from health and safety requirements because of their religious beliefs (see Note 2).
Attacking an employer that decided to go beyond the requirements and offer a religious exemption over a deadline for requesting one seems ill-founded. It’s the employer’s responsibility to offer an accommodation, but extensive jurisprudence also puts some burden on the employee to act and meet the employer half way – and meeting a deadline is not a high requirement.
Frankly, if I were an employer, my takeaway from the EEOC’s choice to litigate this would be that it’s probably better not to offer a religious exemption at all, and make the case that the burden of allowing employees to refuse precautions and increase the risk that they will expose patients to influenza is an undue burden. There is a good argument for doing so.
The one hesitation I have here is over Mr. Robinson. Mr. Robinson filed an exemption request. Barring his request with no examination because he used a different form seems unjustifiably technical. On this, there may be a claim that if Mission Hospital is offering an accommodation and an exemption, it should consider all exemptions filed before the deadline. There is an argument against that – that all employees need to meet the requirements. But the different approach seems more fair.
In short, the EEOC erred in bringing this case. This is not a situation where employees face substantial discrimination based on their religious beliefs. This is a hospital trying to protect its patients with a reasonable health and safety regulation, an influenza mandate.
The hospital considered religious beliefs and offered an exemption, but set procedural requirements – not very burdensome ones – to obtain it. Even if a reasonable accommodation was required, the hospital’s policy meets it. The fact that the employees failed to meet the deadline is their responsibility, and dragging the hospital to court over it is unwarranted.
- For a more thorough discussion of influenza mandates for healthcare workers, see: Randall LH, Curran EA, Omer SB. Legal considerations surrounding mandatory influenza vaccination for healthcare workers in the United States. Vaccine. 2013 Apr 3;31(14):1771-6. doi: 10.1016/j.vaccine.2013.02.002. Epub 2013 Feb 14. Review. PubMed PMID: 23415931.; Stewart AM, Rosenbaum S. Vaccinating the health-care workforce: state law vs. institutional requirements. Public Health Rep. 2010 Jul-Aug;125(4):615-8. PubMed PMID: 20597463; PubMed Central PMCID: PMC2882617; Najera RF, Reiss DR. FIRST Do No HARM: PROTECTING PATIENTS THROUGH IMMUNIZING HEALTH CARE WORKERS.Health Matrix Clevel. 2016;26:363-402. PubMed PMID: 27263256.
- E.E.O.C. v. Oak-Rite Mfg. Corp., 2001 WL 1168156 at *1.