The last months of the year are marked by holidays, family, snow days -- and influenza, commonly known as the flu. For the 2017-2018 flu season, the Center for Disease Control ("CDC") recommends adults receive an injectable flu shot to combat the illness. Because the flu translates into lower productivity and increased sick days, some employers echo the CDC's recommendation and incentivize its employees to be voluntarily vaccinated. For some employers, however, vaccination is considered necessary for business and public health. As a result, they have created policies making flu vaccinations mandatory for employees.
The problem with this policy arises when an employee protests against vaccination for philosophical or religious reasons. If the latter, the employer's vaccination requirement likely falls under Title VII of the Civil Rights Act, which forbids discrimination or retaliation based upon religion. A recent increase in religious discrimination lawsuits involving mandatory vaccination policies, paired with the Equal Employment Opportunity Commission's ("EEOC") hard stance, has brought this matter to our attention.
On March 5, 2012, the EEOC issued an informal letter on its policy regarding religious exemptions to employer mandated vaccinations in the healthcare field. In it, the EEOC concluded an employer must make reasonable accommodations for an employee objecting to a mandatory vaccination on religious grounds, as long as it does not impose an undue hardship on the employer. Since this letter was published, the EEOC has steadily increased the number of religious discrimination lawsuits against employers for failing to provide reasonable accommodations to vaccination policies. To avoid such litigation, it is imperative employers revisit and revamp such policies before the next flu season. When doing so, keep in mind:
- Document Everything - Ensure any mandatory vaccination policy includes a method of documenting the accommodation and exemption process in writing.
- Limit the Policy's Scope - Limit the policy's scope to employees whose duties bring them in direct contact with the public or risk contamination. Therefore, a behind the scenes employee (e.g., an accountant) may not be subject to the policy the same way a public employee (e.g., a nurse who sees patients) is, despite working for the same facility.
- Don't Rely on Deadlines - Arbitrary cut-off deadlines do not relieve an employer of its obligation to review requests for religious exemptions and make reasonable accommodations. In a recent North Carolina case, the business required all applications for religious exemptions from the flu vaccine be submitted by November 1, and summarily rejected all late applications. The court deemed this unreasonable. When creating policy, make sure that all religious exemptions are considered for merit and appropriately accommodated, regardless of internal deadlines.
- Don't Question an Employee's Sincere Religious Belief - It is best practice to not challenge the substance of an employee's religious beliefs, nor the sincerity of those beliefs. As stated in the 2012 EEOC letter, the threshold for establishing a sincerely held religious belief is low, and cases demonstrate that courts do not like to rule on these questions.
- Consider All Types of Reasonable Accommodations - An employer that is required to provide reasonable accommodations may be tempted to select one general accommodation applicable to all religious objectors. Avoid this temptation, and consider a range of possible accommodations, including: alternative protective gear (e.g., surgical masks), transfer to another physical location, alternate version of the vaccination (e.g., nasal spray), leave of absence, change of schedule, or temporary reassignment to a vacant position. The exact accommodation should be determined on a case-by-case basis, must not inhibit the employee's ability to do their job, and cannot be imposed in a discriminatory or retaliatory manner.
It is entirely possible for an employer to mandate a vaccination policy to protect its business without running afoul of Title VII. The key is crafting a flexible written policy that adequately protects the productivity of the business, while accommodating those with religious objections. If your business has a mandatory vaccination policy that needs revisiting, or your business is interested in starting one, please contact us