Page 32 - Network Magazine Fall 2018
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      Mandatory Flu Shots In The Workplace:
What Can An Employer Legally Require
GEORGE C. HLAVAC AND EDWARD J. EASTERLY
NORRIS MCLAUGHLIN P.A.
CASE STUDY: George Costanza’s employer implements a new policy which requires all employees to obtain an influenza vaccine prior to the upcoming flu season. The policy permits employees to be excluded from the required vaccination if they can establish a medical or religious basis for the request. Costanza informs his employer that he cannot get the vaccination due to his re- ligious beliefs. Specifically, Costanza’s religion of Festivus not only includes a metal pole, the airing of grievances, and feats of strength but also prohibits the use of vaccina- tions. Costanza's employer does not believe that this is a real religion and terminates his employment. Costanza’s attorney subsequently files a lawsuit claiming religious discrimination in violation of state and federal laws. Did the employer do anything wrong in this instance?
ANALYSIS: As an initial matter, under Title VII, the federal law which prohibits discrimination on the basis of religion, employers are required to provide reasonable accommo- dations for an employee’s sincerely-held religious beliefs. Title VII does not contain a list of acceptable religions and includes more than just the traditional recognized and or- ganized religions. As such, in order to be protected under Title VII, an employee must merely show that he or she holds a sincere religious belief, which was the basis for the adverse employment action.
The Third Circuit has recently addressed what consti- tutes a sincerely-held religious belief in accordance with Title VII. In Fallon v. Mercy Catholic Medical Center, the plaintiff, Fallon, claimed that his employer terminated him after he refused to get the required flu vaccine. Fallon did not belong to any organized religious organization but held a strong personal and medical belief opposing the flu vaccine because he believed it might harm his body. After Fallon informed his employer of his belief, the employer requested a letter from a clergy member to support his
request. Fallon could not provide such a letter to support his request. As such, his employment was terminated.
Fallon sued his employer and claimed it had discriminated against him on the basis of his religion. Fallon's complaint was initially dismissed by the federal District Court in Pennsylvania because Fallon's beliefs were not based upon any sincerely-held religious belief and, as such, not protected by Title VII.
The dismissal of Fallon’s claim was upheld by the Third Cir- cuit Appellate Court, which conducted a specific analysis into whether Fallon’s beliefs with regard to the flu vaccine were in any way based upon religion. The Court found that Fallon’s beliefs were not religious in nature due to the fact that they did not “address fundamental and ultimate questions having to do with deep and imponderable mat- ters.” Conversely, Fallon was concerned about the health effects of the flu vaccine. Fallon merely did not believe that it was harmless to most people and desired to avoid taking the vaccine. As such, the Court determined that Fallon’s request was not religious in nature, and therefore, not protected by law.
Turning back to Costanza, his employer should be con- cerned about the claim. Contrary to the plaintiff in Fallon, Costanza has clearly articulated a religious belief to his employer, not one of a personal nature. Under both state and federal law, once an employee articulates a sincerely held religious belief, an employer is required to provide a reasonable accommodation unless the employer can establish an undue hardship. In this instance, it would be difficult to establish an undue burden considering the employer had carved exceptions into the policy itself.
Employers should also be mindful of how much they question an employee’s sincerely-held religious beliefs. In this regard, the Court in Fallon specifically stated that ask-
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