Public Good vs. Private Rights

vaccinationWhere is the line between private rights and public good? 

In the interest of protecting public health, many health care providers require employees to receive influenza vaccinations (“flu shots”). Statistics from the Centers for Disease Control and Prevention and the National Institutes of Health show a clear reduction in flu transmission and thus a benefit to society by mandating such policies. Additionally, many state boards of health (including in Colorado and Utah) impose vaccination requirements for health care workers, require reporting on vaccination rates among staff, and publish the results for public awareness.

Despite the apparent public-health benefits, there is not universal acceptance of this mandate, and many health care workers oppose vaccinations based on personal beliefs. Some oppose mandated vaccination as a violation of their physical person and question the safety and effectiveness of influenza vaccines. The source of opposition for some are the memories of unethical, government-funded medical research that subjected people without their consent to undisclosed experimentation (most notoriously, the Tuskegee Syphilis Study that victimized African American men). Others claim there is a conspiracy to infect or disable the population. Others assert there is a conspiracy to enrich the pharmaceutical industry, which has trumped up public hysteria over seasonal influenza as a strategy to secure a reliable consistent revenue pipeline.

Some health care workers oppose compulsory vaccination based on religious beliefs, and this is where employers must be very careful in responding to employees who refuse to participate. Religious beliefs are protected by Title VII of the Civil Rights Act of 1964, and often by state laws. Employers who knowingly or unknowingly discriminate against employees on the basis of religion will suffer costly consequences, and thus must understand the differences between personal and religious beliefs.

Do you know religious beliefs when you see them? There is no single definition or list of bona fide religions covered by Title VII–that would be too easy for a diverse America! Instead, The Equal Employment Opportunity Commission (EEOC) interprets religion “to include moral or ethical beliefs about right and wrong that are sincerely held with the strength of traditional religious views.” This interpretation has been upheld by the Supreme Court.

What should an employer do when an employee refuses a mandatory vaccine? The first step is to engage in dialog to allow the employee to clearly articulate his or her opposition. The employer must identify, ask questions to clarify and document the employee’s reasons, and then decide how to proceed. (At this stage, seek MSEC guidance.) If the reasons are based on personal beliefs, it is possible for the employer to impose consequences for non-compliance up to and including termination of employment. If the reasons are determined to be on religious grounds, employers must engage in an interactive process with the employee to identify possible accommodations.

The term “interactive process” brings to mind the Americans with Disabilities Act (ADA) and its requirement for reasonable accommodation, but there is an important difference with religious accommodation vis-a-vis the ADA. For religious accommodation, the employer is not expected to make accommodations that have more than a minimal burden (“de minimis”) on the employer; simply put, they are not required to expend as much effort, nor incur as high a cost, as might be required by an ADA request for accommodation. Importantly, this means employers may have an easier time proving a requested accommodation would impose an “undue hardship.” According to the EEOC:

An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

When a request is determined to create an undue hardship on the employer, the employer may be legally allowed to deny the request.

In the case of health care employers with mandatory vaccine policies, adverse action may be taken against an employee who rejects vaccination on personal grounds, however compelling their reasons may be. In this case, public good clearly outweighs a person’s rights to their own beliefs. But if refusal is based on religious grounds, beware! In 2016, the EEOC aggressively pursued litigation against health care employers who terminated employees for refusing influenza immunization on the grounds of religious accommodation. Court rulings will hopefully provide guidance for future handling of this issue.

For now, one thing is clear: health care employers must be careful when employees resist mandatory vaccination policies and make requests for religious accommodation. If denial is based on the assertion that not being inoculated imposes an undue hardship due to the threat of infecting patients and coworkers with influenza, this conclusion must be the result of a carefully documented, individualized assessment of the employee and his or her job duties, schedule, interactions with patients, etc. An alternative to vaccination is to wear a face mask at all times when at work, but many health care employees are resisting this option due to a variety of concerns. They consider it a form of public shaming that inhibits their ability to provide effective patient care: the mask distorts their voices and makes it hard for some patients to understand them, thus reducing effective communications with patients. The EEOC is challenging mandatory face mask policies, as well. Until consistent court rulings are established, it is not clear that public good will trump private religious rights in this workplace conflict.  

Here are some key take-aways for all employers to manage requests for religious accommodation:

  • Engage in dialog! Employers who heavy-handedly impose policies without an individualized, interactive, solution-oriented dialog with dissenting employees are at high risk for discrimination claims, investigation, and potential penalties.
  • Train managers: They must be aware of their role in responding legally to requests for religious accommodation. They must react respectfully and understand there are nuances to this discussion that may require deeper consideration by Human Resources or legal counsel.
  • Communications: Develop sensitive internal communication and reporting processes to identify and carefully manage these requests in a respectful manner.
  • Document: Capture the facts at each step of the process, including the employee’s requests and employer’s responses. This is crucial in cases of employee complaints to the EEOC. Additionally, although each employee’s request must be given individualized attention, this documentation may provide a useful archive to consider future requests and ensure a degree of consistency.
  • Closely monitor the situation: Be sure to close the loop with employees and address new developments and requests to avoid latent resentments that may fester if left unanswered.

Members are encouraged to work with us to minimize the risk and navigate complex religious accommodation situations.