In a previous post, I analyzed the implementation of Title VII of the Civil Rights Act, 1964 in the context of influenza vaccines (see also, a more comprehensive analysis). In this article, I examine what fair accommodations can be made for healthcare worker flu vaccinations.
A recent case examined how the requirements of Title VII will be implemented, showing that Title VII does not require hospitals to exempt employees with religious oppositions from influenza vaccines – and that if it does offer accommodations, there are limits to what an employee can expect to be done to accommodate her beliefs.
Title VII of the Civil Rights Act
Under Title VII, employers may not discriminate in the workplace, among other things, on religious grounds. If an employee has a sincere religious opposition to a workplace rule, the employer is required to “reasonably accommodate” an employee’s “religious observance or practice” unless doing so will be an “undue hardship on the conduct of the employer’s business.”
The courts interpret the undue hardship standard as imposing very, very low requirements on employers. An accommodation is an undue hardship if it imposes “more than de minimis cost” on the operation of the employer’s business.
For the first time, this case – out of Boston – interprets what that means.
Leontine Robinson did not want an influenza vaccine, even though her employer demanded it as a condition for employment from people working with patients. The employer did not offer a religious exemption, though did offer those with concerns about pork in vaccines a pork-free vaccine.
Initially Ms. Robinson claimed that it’s because the vaccine offered contained pork products, and as a Muslim, she could not take it and received support from the Nation of Islam for that claim. Note that other Muslim religious scholars found that the pork gelatin in some vaccines is not a reason not to get them (pdf), but under our jurisprudence individuals can object on religious grounds even if their official religion does not, as long as their opposition is sincere.
She was then offered a pork-free vaccine. She claimed her religion opposes vaccines generally, and was told she would be fired. At that point she explained that her issue is an alleged allergic reaction to a flu vaccine in 2007. The hospital encouraged her to apply for a medical exemption and granted her a temporary one, until her documents were evaluated. She submitted documents, but at the end, her claim for a medical exemption was rejected.
At her request, the hospital helped her search for a position outside patients’ areas that would not require vaccinating, but she was not hired for the only position for which she interviewed. The hospital gave her extra paid leave to find a position, and at the end treated her termination as a resignation, which allowed her to apply for open positions in the hospital in future. But she was terminated, and sued over that in the federal district court in Massachusetts.
The hospital asked for summary judgment – asking that the case be rejected on grounds of law, without Robinson being granted her day in court. It gave three reasons:
- The hospital gave Robinson reasonable accommodations.
- Any accommodation would be undue hardship.
- Robinson’s religious claims were insincere.
Because the result of granting summary judgment for the defendant is denying the plaintiff her day in court, our law requires that the court assume plaintiff is telling the truth. So the district court assumed, for this discussion, that Robinson was telling the truth.
But it still granted summary judgment, rejecting the case, for the first two reasons. I’m going to start with the second reason, because that’s the more powerful ruling.
Any accommodation would be undue hardship
To remind readers, the standard for undue hardship is a very low one. If accommodation imposes more than de minimis costs, it’s undue hardship and the employer is not required to provide it.
The court here explained:
[infobox icon=”quote-left”]Undue hardship can be both “economic costs, such as lost business or having to hire additional employees to accommodate a Sabbath observer,” and “non- economic costs, such as compromising the integrity of a seniority system” or loosening a company’s dress code. … Undue hardship can also exist if the proposed accommodation would “either cause or increase safety risks or the risk of legal liability for the employer.” “Title VII does not require employers to test their safety policies on employees to determine the minimum level of protection needed to avoid injury.” (citations omitted).[/infobox]
In other words, if accommodating a religious belief would reduce safety, the employer doesn’t have to give it. And the court – correctly – accepts the hospital’s argument that not vaccinating an employee undermines safety. The court says:
[infobox icon=”quote-left”]The Hospital contends that granting Robinson’s request would have been an undue hardship because it would have increased the risk of transmitting influenza to its already vulnerable patient population. .. On this record, the Court agrees. Health care employees are at high risk for influenza exposure and can be source of the fatal disease because of their job. D. 47 ¶¶ 5-6. Numerous medical organizations support mandatory influenza vaccination for health care workers. Id. ¶¶ 14-16. The medical evidence in this record demonstrates that the single most effective way to prevent the transmission of influenza is vaccination.
[T]he Hospital decided to achieve the safest possible environment for its patients. … Robinson worked in a patient-care area. She worked closely with patients, regularly sitting near or touching them as she worked on their admission to the Hospital. Had the Hospital permitted her to forgo the vaccine but keep her patient-care job, the Hospital could have put the health of vulnerable patients at risk.[/infobox]
The court, in other words, found that the data shows influenza is a danger to patients, vaccination the most effective way to prevent it, and allowing an employee to forego it can put vulnerable patients at risk. The hospital doesn’t have to do that.
The Court also found that the hospital made efforts to accommodate Robinson. The hospital doesn’t have to offer the employee the accommodation they would prefer – just a reasonable accommodation. In this case, the court pointed out that the hospital made substantial efforts to accommodate Robinson – much beyond it was required to.
The court reminded us that the choice of accommodation is up to the employer, as long as it’s reasonable. The employer doesn’t have to provide the employee’s preferred accommodation. And the the employee has a duty to cooperate in the matter. The employer doesn’t have to create a position to accommodate religious beliefs, or even to deviate from seniority.
Summing up, the court said:
[infobox icon=”quote-left”]The Court concludes that the combination of the Hospital’s efforts—allowing Robinson to seek a medical exemption, providing her reemployment resources, granting Robinson time to secure new employment and preserving her ability to return to the Hospital by classifying her termination as a voluntary resignation—amounted to a reasonable accommodation under Title VII ….[/infobox]
This case reminds us that the requirements under title VII of the Civil Rights Act of 1964 allow employers leeway on whether and how to accommodate employees claiming religious objection to influenza vaccines.
The court did not see a requirement for the hospital to offer a religious exemption, and pretty much accepted the hospital’s view that an accommodation can be an undue hardship. It also reminded us that what employers have to do if they do choose to accommodate is, to large extent, at their discretion, within limits set by the reasonableness requirement.
Hospitals can choose not to exempt people with religious exemptions, and if they do want to accommodate, do not have to go substantially out of their way to do so.
Full decision: Robinson v Children’s Hospital Boston