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Fighting the Flu (and Liability) in the Workplace, cont.

On Monday, we examined the basic concept of employer-mandated flu vaccinations.  Generally speaking, employers may require at-will employees to get a flu shot and may terminate an employee based upon a refusal. The right to terminate, however, is not without limitation,  and a recent case on this issue instructs that certain protected rights and classifications likely must be considered prior to termination.

As a starting point, the EEOC has announced that under Title VII and the ADA, an employee may be entitled to an exemption from vaccinations based upon a disability, medical condition (e.g., previous severe reaction) or sincerely held religious belief that prevents the employee from taking flu vaccines. In some cases, an employee may be required to make a reasonable accommodation for an exempt employee, such as removing them public interaction or requiring the employee to wear a surgical mask.

In 2012, mandatory flu vaccinations in the workplace made headlines when Sakile Chenzira, a customer service representative for Cincinnati Children’s Hospital, filed a religious discrimination suit in federal court in Ohio. Chenzira was a customer service representative for the hospital for over ten years and had previously asked the hospital to accommodate her request to not receive flu vaccines because they contained animal by-products. The hospital honored Chenzira’s request until 2010, when they fired Chenzira for her refusal to get the shot.

Chenzira filed suit on the basis that she is a vegan, and should therefore receive protection because her vegan practice is a moral and ethical belief that she sincerely holds with the strength of traditional religious views. The hospital moved to dismiss Chenzira’s claims in their entirety, arguing that veganism is not a religion but is more akin to a dietary preference or social philosophy.  The court ruled that it was plausible that Chenzira could believe in veganism to the extent necessary to equate it to a traditional religious belief.  Thus, the court denied the hospital’s motion to dismiss and has permitted the case to move forward.

Clearly,  Chenzira did not have to “prove” her case to survive the motion to dismiss, and if the case makes it to trial, Chenzira will have to establish that her veganism is a sincerely held religious belief. The hospital will also be allowed to present evidence that Chenzira’s termination was justified because of overriding reasons, such as patient safety.  Nonetheless, the ensuing trial should be watched carefully to provide an in-depth analysis of this issue. The court will have to address the employer's alleged justifications for a mandatory program, which may help other employers develop policy reasons for their own programs. In addition, the court may offer suggestions for reasonable accommodations for non-participants. 

In addition to considering the legal aspects of flu policies, employers should consider how such a policy will affect the office. Are you prepared to enforce the policy uniformly, regardless of the importance of the refusing employee? Have you considered making vaccination a condition of employment? Is there a written policy that addresses the need for vaccinations and a procedure by which employees can raise objections? These things all deserve consideration before announcing a new mandatory requirement.

Mandatory flu shots can promote a healthy workforce, but it takes a dose of education and common sense to make sure that they are legally sound and enforceable.

This article is intended as a summary of newly enacted federal and state law and does not constitute legal advice.

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