Mandatory Flu Shots In The Workplace: What Can An Employer Legally Require

by Edward Easterly & George Hlavac

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 religious 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 vaccinations.  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 accommodations 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 organized 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 constitutes 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 Circuit 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 matters.”  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 concerned 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 asking for a “letter from the clergy” may be a violation of the law.  If an employee articulates a sincerely-held religious belief and can state the reasons for such a belief and the reasons for the accommodation request, the employer’s follow-up inquiry should be limited to determine if the accommodation can be provided.  Employers should not, generally, force employees to document their religious beliefs in order to obtain an accommodation.  As with Costanza, not all religions are organized or established and need not be so in order to be afforded protections under the law.

Employers who have union employees and are subject to collective bargaining agreements have additional concerns.  The National Labor Relations Board, which interprets and enforces the National Labor Relations Act, has stated that flu policies are subjects of mandatory bargaining.  As such, unless a “Management Rights” provision in the collective bargaining agreement permits an employer to unilaterally implement such a policy, the employer is required to sit at a table with the union and agree, generally, to the terms to be included in the policy.

Employers must be mindful of their legal requirements generally if an employee requests a religious accommodation and specifically if it is done in response to a mandatory influenza vaccine policy.  While the Fallon employer was lucky in that the employee’s belief was not “religious” in nature, that is not always the case and is rare for a court to find in such a manner.  Employers should not generally question an employee’s beliefs, but instead, determine if they can accommodate the request.  Additionally, employers should ensure that all policies, including an influenza vaccination policy, are handled in a consistent and uniform manner.  Doing so will hopefully avoid being subject to a lawsuit or being on the receiving side of the airing of grievances at Festivus.

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