Wednesday, January 9, 2013

Vaccination Accommodation

Sometimes employers require their employees to get certain vaccinations, such as a flu shot. In Chenzira v. Cincinnati Children's Hospital, the employer terminated an employee who refused to get vaccinated for the flu. The employee refused to get the shot because she is a vegan and filed a religious discrimination lawsuit after she was fired.

Many bloggers have focused on whether "vegan" is really a religion (a topic I'll hit in a later post), but I wanted to hit a different issue: Are employers required to give employees a "pass" on vaccine requirements if they object on religious grounds? This issue also pops up when employees have a disability that precludes them from receiving the vaccine.

In this case, the employer was a hospital. The Court issued an opinion (linked above) refusing to dismiss the claim. Now, it is important to remember that a motion to dismiss is just about the lowest hurdle a plaintiff has to clear. As the Court recognized:
The Court’s ruling in no way addresses what it anticipates as Defendant’s justification for its termination of Plaintiff, the safety of patients at Children’s Hospital. At this juncture there simply is no evidence before the Court regarding what, if any, contact Plaintiff might have with patients, and/or what sort of risk her refusal to receive a vaccination could pose in the context of her employment.
If I were a betting man, I'd guess that the employer will ultimately win this one but at a fairly significant cost (litigation is not cheap).

The inquiry is context-specific. So, while a hospital might have a really strong health and safety argument, an employee who telecommutes from a plastic bubble in his home has a pretty strong argument that the employer has a duty to accommodate him by giving him a pass on the flu shot.

If you're an employer that requires vaccines and an employee requests an exemption from the requirement based on religion or another protected characteristic - recognize that even a hospital (at least in this case) couldn't get the lawsuit tossed at the motion to dismiss stage. So, there might be some pretty serious litigation costs heading your way. Of course, the health and safety concerns may still outweigh the risk of litigation.

HT: Eric Meyer on The Employer Handbook.

Image: Syringe from Wikipedia under Creative Commons License.