Hospital employee vaccinations – employment discrimination and religion

As I addressed in the past, under Title VII of the Civil Rights Act of 1964 an employer is prohibited from discriminating against employees on the basis of religion. This prohibition requires employers to provide “reasonable accommodations” to employees who have religious reasons not to comply – unless doing so would impose an undue burden. I would like to examine that with respect to hospital employee vaccinations, and how that may relate to religious exemptions.

I have argued before that employers don’t actually have to provide a religious exemption and accommodate religious objections to vaccines. That’s because undue burden has been interpreted by the courts to require very little – if the burden on an employee is more than de minimis, more than very slight costs, an accommodation is not required. The burden here can be a dead or seriously ill vulnerable patient or patients. Arguably, that’s a serious burden. There is no good alternative to flu vaccines – masks, for example, have very limited effectiveness. While theoretically all refusing workers can be moved to non-patients positions, losing trained patient staff is not a trivial burden.

However, most hospitals do offer a religious exemption to hospital employee vaccinations. We are, after all, a country where most people value religions, and I assume most hospitals also believe that a handful of religious objectors will not undermine herd immunity enough to pose a risk – though that’s just my assumption.

In the past year, the Equal Employment Opportunities Commission (EEOC) brought three different cases, in three different regions (see one of the cases here), against hospitals that provided a religious exemption claiming that the way they implemented the exemption violated equal protection.

On December 23, 2016 one of those cases – a case brought against Saint Vincent Hospital in Erie, PA – was settled, and the settlement given judicial power by a consent decree.

This post explains what the settlement means, and what hospitals should take away about religious exemptions to vaccines. The main points is that the settlement is not binding law. However, Saint Vincent was likely right to settle because the way it implemented its religious decree ran in direct opposition to rules governing religious exemptions in the school contact and religious accommodation rules. Finally, hospitals who wish to offer a religious accommodation should make sure that it conforms with the requirements that govern it; and hospitals may want to consider not offering one.

 

The settlement and its meaning

A settlement is not a ruling. A consent decree giving force to a settlement by the parties does not involve making any findings on the merits of the case; all it means is that the agreement is binding and there are easier to use enforcement tools if one of the parties violate it.

In other words, there is no finding here that the hospital discriminated against workers on religious grounds, that the hospital violated the Civil Rights Act of 1964, or that it did anything wrong (though the content of the consent decree implies its policy was flawed).

The consent decree does not create any new law. The law after it is the same law that existed before it. It can, however, provide hospitals guidance on how to avoid violating the existing law.

The consent decree does two things. It orders compensation of employees that were dismissed after their request for a religious exemption was denied. They were also promised reinstatement if their former positions were still vacant.

In addition, the consent decree committed the hospital to a series of actions if it requires influenza vaccines that appeared to fix previously existing problems with its policy.

 

How was the hospitals vaccination exemption policy problematic?

The hospital’s policy was problematic in at least two ways. First, the hospital required a letter from a member of the clergy supporting the claim that a claimant’s religion forbade vaccinating. Second, the hospital apparently rejected some of the applicants’ exemptions because it found their religious beliefs unreasonable. Neither of these is valid under our school exemptions law, and neither would be valid under the way the Civil Rights Act is interpreted.

In other words, this was not a case where the EEOC went after an employer because it opposes influenza mandate. This is a case where the EEOC is telling an employer, if you’re going to offer a religious exemption from influenza vaccine mandates you need to do it on the same terms and following the same well established law about how to handle different religions.

Our law does not allow requiring a letter from the clergy for the simple reason that that requirement discriminates against those whose sincere religious beliefs do not stem from organized religion. If you have a sincere religious objection to a practice, it doesn’t matter if it’s based in an organized religion or not, you should be exempt. This is clearly the law in the school context. In the employment context too, the consent decree explains that Title VII [‘s] definition of religion … does not require ratification by members of the clergy or other persons, and protects beliefs, practices and observations that are idiosyncratic.”

This is completely justified. If a system is willing to exempt people with religious oppositions to vaccines, it should exempt everyone with a sincere belief, regardless of whether they belong to an established church or not – otherwise it’s supporting established churches over others. The lone believer should not be in a worse state than a member of a church.

Similarly, an employer cannot decide which religions make sense and which do not. That’s directly inviting an employer to intervene in an employee’s conscience and apply their biases in assessing religion – completely removing freedom of religion.

If sincere religious beliefs deserve accommodation, that accommodation simply cannot be limited only to those beliefs the employer like. Either give to all, or give to none.

 

Where do we go from here?

The first takeaway is that hospitals who want to offer a religious exemption should respect the requirements of providing such an exemption, or risk costly litigation and potentially adverse rulings. This means:

  1. Consider whether you can justify not exempting staff that don’t work with patients, or a mask requirement for such workers.
  2. A hospital can require evidence of sincerity or have a reasonable process to evaluate sincerity, but it cannot condition an exemption on a letter from clergy or adherence to the tenets of an organized religions.
  3. Sincerity means whether the believer actually holds the beliefs in question. A hospital cannot judge or assess the reasonableness of the belief or the content of it.
  4. A hospital should think through its procedure:
    • Exemption requirements must be clearly notified to employees.
    • The procedure for getting an exemption needs to be reasonable.

A hospital offering a religious exemption needs to follow these rules, even if they mean it will risk granting exemptions to people who are not really objecting on religious grounds, or grant more exemptions than it likes.

The second point is that I stand by my view that hospitals can, and may want to consider, not offering a religious exemption at all.  No religion really opposes vaccines, and there are good reasons to believe most requests for religious accommodations (though not all) stem from misguided safety concerns, not real religious opposition. In addition, influenza mandates protect patients and a hospital can make a powerful argument that religious accommodations put vulnerable patients at risk, and that that is a substantial burden. There really is not a good alternative to vaccinating.

The Saint Vincent case seems to suggest that hospitals offering a religious exemption may seek to limit religious exemptions. Efforts to do so can easily run afoul of the limits on offering religious exemption. That might make a hospital more, not less, vulnerable to a successful legal challenge compared to a policy that provides no exemptions and makes a clear, evidence based argument of the risk unvaccinated hospital employees pose to vulnerable patients.

The risk of litigation clearly exists in both cases, and a case confirming no exemption is needed may make the hospital’s job easier in the long term.

 



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Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

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.