On March 6, 2018, the Department of Justice filed a lawsuit in a federal district court against Ozaukee County, Wisconsin. The Department was suing on behalf of Barnell Williams, a certified nursing assistant in Lasata Care Center, a nursing home, who was claiming emotional distress from being forced to get a flu vaccination for work when getting one contradicted her religious beliefs.
This is not the first lawsuit brought under Title VII of the Civil Rights Act of 1964 on the issue of the flu vaccination for healthcare workers, the claims are not new, and the lawsuit seems well founded. I was not going to write about it because there really is nothing new there, but following several news articles on the topic (here and here), people had questions about it, so this is a short post addressing legal issues surrounding flu vaccination.
This article will list a few key points that are important considerations
A. Lawsuits are not a new thing
In the past few years, the Equal Employment Opportunity Commission (EEOC) has brought several lawsuits against the hospital in the context of flu vaccination mandates, all under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the workplace on, among other things, religious grounds. The act requires reasonable accommodation for employees’ sincere religious beliefs unless doing so would constitute an undue burden – which is a pretty low standard. The previous lawsuits are EEOC v. Saint Vincent Health Ctr., No. 16-CV-00234, 2016 WL 7438696 (W.D. Pa, Dec. 23, 2016), and EEOC v. Mission Hosp., No. 16-CV-00118, 2016 WL 1697385 (W.D. N.C. April 28, 2016). EEOC v. Baystate Med. Ctr., No. 16-CV-030086, 2016 WL 3098271 (June 2, 2016) and EEOC v. Memorial Healthcare, E.D. Mich., No. 2:18-cv-10523, 2/13/18 are still open. I have written about several of them, for example, EEOC v. Saint Vincent Health Center. In a recent article in NEJM, Opel et al. discussed these issues.
B. Choosing the EEOC
The choice of EEOC to bring suits in this area is concerning, and some of the previous lawsuits raise questions. But this lawsuit does not add to that concern.
C. Issues are not new
The legal issue here is not new, not unique to the context of flu vaccination mandates, and not especially dramatic. Basically, the hospital in question offered a religious exemption. But, the complaint says,
To obtain the religious exemption, the policy required employees to provide the Center with a “written statement from their clergy leader supporting the exemption with a clear reason and explanation.
Since Ms. Williams’ beliefs were, apparently, personal, she could not do so. Ms. Williams claimed that “her interpretation of the Bible that prohibited her from putting certain foreign substances, including vaccinations, in her body because it was a ‘Holy Temple.’”
Yes, this claim sounds strange, and the hospital would be well within its right to look into the sincerity of her beliefs. But there are limits on doing so. First, if a hospital offers religious exemptions – and there are good grounds to think it doesn’t have to – it cannot limit them to members of organized religions because that’s discriminatory. It would discriminate against those with sincere religious beliefs who are not part of an organized religion. Second, the hospital cannot evaluate the reasonableness of the belief, only its sincerity. These issues were the basis of the claims in the Saint Vincent cases, which ended in a consent decree mostly accepting the EEOC claims.
In other words, if the facts in the lawsuit are true, the government is simply enforcing a well known, established principle governing the application of the religious discrimination protections in the Civil Rights Act of 1964.
D. Hospitals should not limit religious exemptions
Hospitals can and should avoid being in this situation by not limiting religious exemptions – if they provide one – to organized religions. Basically, limiting exemptions to those who can provide a letter from clergy is illegal (reminder: this discussion takes place under the Civil Rights Act of 1964, not the first amendment. Private employers are not bound by the first amendment).
Opel et al., drawing on another case, offer what is the most reasonable alternative to allowing hospitals to evaluate sincerity without running into this limit:
Asking employees to describe their beliefs, for example, is a reasonable alternative to clergy attestation for assessing whether they are religious and sincere.
E. These are not school mandates
This is not related to school mandates. Religious discrimination in the workplace, which is the legal claim here, is governed by the Civil Rights of 1964. School mandates are governed by the First Amendment and our courts consistently found states don’t have to provide a religious exemption under it.
Summary
In short, there is nothing new or dramatic in this case. The area is an area of concern, but the specific lawsuit is not. This is not a new law, it’s not a new situation, and with awareness of the content of the law and a little forethought it’s avoidable: hospitals can avoid this problem.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
