In a previous post, I described a New Jersey Court of Appeals case in which Ms. Valent was denied unemployment benefits because she refused flu vaccines without claiming the religious exemption. I explained that the hospital was not constitutionally required to provide a religious exemption, and that doing so was a losing proposition from a hospital’s point of view.
In the comments following that post, it was correctly pointed out to me that there is another claim I should have addressed: a claim that the hospital was required to provide a religious exemption under the Civil Rights Act of 1964. This did not come up in the case itself: the court reinstated the nurse’s unemployment benefits on constitutional grounds, though problematic constitutional grounds. But since I argue that hospitals should not offer a religious exemption, I need to address whether the hospital is required, under Title VII, to offer an accommodation.
Religious Accommodation Under Title VII
Title VII of the Civil Rights Act of 1964 prohibits discrimination in the work place if it’s based, among other things, on religion. If an employee has a sincere religious belief that conflicts with an employment requirement, the employer is supposed to offer a reasonable accommodation – though not necessarily the accommodation requested by the employee – unless doing so would create an “undue burden” on the employer.
The courts have interpreted the undue burden requirement to be a very low bar: the employer is not required to offer an accommodation if it will impose more than de minimis cost – in other words, such a small cost that it’s fair to discount it, it’s negligible – either in money or in conducting their business (EEOC v. Abercrombie & Fitch, pdf).
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How does this apply to Flu Vaccines
In the context of flu vaccination, Attorney Alan Phillips helpfully directed my attention to a previous Equal Employment Opportunity Commission (EEOC) pronouncement in the context of the 2009 H1N1 flu pandemic. Among other things, the EEOC addressed whether an employer can require all employees to take the flu shot. Two relevant statutes apply: the American with Disabilities Act (ADA) protect the rights of those with a disability that prevents from vaccinating; and the Civil Rights Act protects those with religious objections.
In this internal memo, written to help employers apply the law in this context, the EEOC said:
[infobox icon=”quote-left”]May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, 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 as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).[/infobox]
What does this mean? It means that an employer must accommodate an employee covered by the ADA unless such an accommodation would be a significant difficulty or significantly expensive. But an employer does not have to provide a religious accommodation if it will be more than a de minimis cost to do so.
In practice, hospitals have required employees to wear a mask as an alternative to vaccination. There is also the option of reassigning an employee. That’s probably it.
The flu shot is not our most effective vaccine, but around 60% protection against flu is much higher than zero. In 2013-2014 vaccine effectiveness was estimated to be 61%. An employee who refuses to take the flu vaccine is at an increased risk of getting the disease and passing it on to a vulnerable patient. As an accommodation, hospitals have been allowing employees to wear a mask. But a mask does not effectively prevent transmission of the flu: it is a lot less effective than the vaccine.
And a mask is a continuous precaution, like washing hands or looking in the mirrors. This kind of precaution is much more vulnerable to employees forgetting, neglecting to do, or otherwise ignoring. It’s much harder to enforce than a one time precaution, like installing seatbelts or getting a shot.
In other word, this accommodation does not reduce the risk in the same way: if masks were sufficient, a hospital would not need to adopt a policy requiring workers to be vaccinated in the first place. By increasing the risk to patients, the accommodation of allowing employees to wear a mask puts a burden on the hospital’s business operation that’s beyond a de minimis cost: it can easily be a cost in life, and certainly a cost in suffering and burden on the hospital. Offering an accommodation that directly undermines the goals of the policy set by the employer is not a negligible burden.
Reassigning may also be a burden: it can deprive the hospital of workers available to work with patients, leading to those areas being understaffed, and it can be a burden on other employees. Under Trans World Airlines v. Hardison, 432 U.S. 63, 85 (1977), if reassigning a worker that has religious objections to getting a flu shot imposes a burden on other workers, the employer is not required to do so. It’s a factual question, but in many circumstances it would be a burden – either on the employer or on other employees – to reassign such an employee. And anyway, reassigning in the same building may not solve the problem: the employee may still infect others who may then infect patients.
In other words, hospitals most likely can refuse to offer a religious exemption, based on a claim of undue hardship. Again, this is a low bar. The courts have been very, very deferential to employers’ claims of undue hardship.
Offering a religious exemption
Why, then, do hospitals offer a religious exemption that they are neither constitutionally nor legally required to offer? Two explanations are possible: hospitals may wrongly believe they are legally or constitutionally required to offer a religious exemption, or, as a smart man pointed out, given the importance of religion in the United States, hospitals may have a healthy respect for religious beliefs and seek to accommodate them. It has already been explained that there is no such requirement. And the problem with offering an exemption out of consideration is that in doing so a hospital is almost guaranteeing widespread abuse.
Our jurisprudence in the context of school exemptions made it very hard to prevent abuse of the religious exemption. First, any ethical or moral belief held with the intensity of a religious belief qualifies. This does not apply to every claim: an (unfounded) belief that vaccine ingredients are toxic is not an ethical or moral belief. But it’s a very broad standard and may, for example, include a sincere commitment to “live, love, eat, serve, and raise their babes in unhindered, natural, and wholesome ways.” Employers that may want to respect religious beliefs may not be as willing to extend that to point of views that are not religious: we do make a distinction.
Every court that ruled on whether a state can limit a religious exemption to organized religions said no, a state cannot – with one exception, a Kentucky court in the 1970s, and the legislature changed that exemption. What is important is not just that the courts ruled this way, but why they did so, because that logic will probably apply to employers, too: if our establishment clause, or the prohibition on religious discrimination, means anything it’s that organized religions don’t get preferential treatment over other beliefs. Similarly, the fact that a person belongs to a religion whose authorities interpret the religious tenets differently than the believer does not make that believer’s claims less sincere.
The effect, however, is to make it almost impossible to prevent abuse: limiting an exemption to organized religions who, in this case, oppose vaccination can make verifying it easy – but chances are it would be found unconstitutional or illegal; and basing the exemption only on the sincerity and power of the belief means that either there is no real policing or that policing privileges the better liars.
An employer’s choice is to offer the exemption and accept the potential for abuse – some people will lie about their reasons, probably most of those taking the exemption – or not offer the exemption. In both cases there is a danger of litigation, at least if the employer does enforce the exemption to some degree: an employer can be sued by an employee who was refused the exemption, or can be sued for not offering one. Given the low bar that the undue burden standard poses, and the high deference the courts have been giving to employers in applying it, it’s probably a safer bet than going to court to defend an existing exemption.
The New Jersey case makes that choice in that jurisdiction, and others that may follow, even more stark. The court ruled (pdf) that an employer cannot refuse an exemption to those whose reasons are secular. The court also expressly said that having a religious exemption shows that the real reason behind the policy is not exclusively health-related. In other words, an employer who chooses to offer any non-medical exemption has to offer it to anyone who does not want to vaccinate. And the existence of the exemption serves to undermine the employer’s view that requiring vaccination is needed to protect the health of patients and community health.
Under this approach, employers can choose to commit to requiring vaccination, and provide no exemption except a medical one; or the employer can choose to make vaccination optional, or at least be willing to pay unemployment benefits to anyone fired for refusing vaccination. Even if jurisdictions do not go as far as New Jersey, the choice is between no exemption and a broad exemption open to abuse.
Offering a non-medical exemption is neither constitutionally nor legally required, and simply undermines the benefits of requiring that health workers vaccinate against the flu. (Note: emphasis added)