Friday, June 3, 2016

Local nurse's religious accommodation claim over vaccine objection

The hospital in which I was born (just over 40 years ago) faces an interesting discrimination lawsuit: Mount Nittany OB nurse sues over vaccination.

Fun fact: The hospital has an awesome view
of Beaver Stadium. I took this from our room
when my daughter was born.
Short version: The hospital required the employee to get a TDAP vaccine, She refused. She was removed from the schedule. A few moths later, the hospital offered her an accommodation - she could not work around babies in the OB/GYN department but could work in another department if she wore a surgical mask. You can read the full Complaint here.

Here's my unsolicited two cents based on my limited knowledge from the article and Complaint:

Generally, Title VII requires employers to reasonably accommodate employees whose sincerely held religious beliefs conflict with employer policy. The fact that her religion (identified as Christianity) does not generally prohibit vaccines does not really matter - the issue is what she personally sincerely believes. It sounds like she has a decent prima facie case - she was out of work for a few months because her religious aversion to vaccines conflicted with the hospital's policy.

The employer has some defenses available though. First, employers do not have to provide an accommodation if it would impose an "undue hardship." For religious accommodations (as compared to disability accommodations under the ADA) that's a very low bar (more than just a de minimis cost). Also, employers are not required to tolerate a direct threat to health or safety; arguably, the vaccine-less nurse would pose a threat to babies with weakened immune systems (apparently, that is part of the hospital's justification for not allowing her to work).

So, that sounds like the nurse loses, right? Not so fast! Apparently, the hospital rather easily accommodated her by moving her to a different department and requiring her to wear a mask. Why didn't it do that sooner? That's an important question, and I can't find an answer anywhere. The hospital could also argue that the accommodation imposed an undue hardship (which it eventually voluntarily incurred).

The damages in this case appear to be pretty low - just a few months pay; but when you tack on potential attorney's fees and punitive damages, it can add up fairly quickly.