Vegan Hospital Worker's Flu Vaccination Refusal May Be Protected Religious Belief
The Supreme Court and Title VII's expansive view of "religion" is well illustrated by Chenzira v. Cincinnati Children's Hospital Medical Center, in which an Ohio federal court denied a motion to dismiss a hospital worker's claim that her termination for refusing to have a mandatory flu vaccination because she was a vegan was religious discrimination.
Title VII outlaws discrimination based upon "religion," a term the statute defines to include "all aspects of religious observance and practice as well as belief." The Supreme Court and federal regulations define religion as a "sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by . . . God." In addition to the universally known religions, such as Islam, Christianity, and Hinduism, the Supreme Court has extended the definition of religion to beliefs that "need not be acceptable, logical, consistent, or comprehensible to others in order to merit . . . protection."
In Chenzira, a hospital customer service representative contended that her termination for refusing to have a mandatory flu vaccination "violated her religious and philosophical convictions because she is a vegan, a person who does not ingest any animal or animal by-products . . . ." The hospital argued that, as a matter of law, veganism does not qualify as a religion but rather is "no more than a dietary preference or social philosophy." The employee argued that her veganism constituted a "moral and ethical belief which is sincerely held with the strength of traditional religious views . . . ." Pointing to the employee's essay entitled "the Biblical Basis of Veganism," the court found it "plausible the plaintiff could subscribe to veganism with a sincerity equating [to] that of traditional religious views."
In denying the employer's motion, the court noted that, on a motion to dismiss, it "merely needs to determine whether Plaintiff has alleged a plausible claim." Although the court in Chenzira concluded it was arguably plausible that the employee's veganism constituted a "moral and ethical belief . . . sincerely held with the strength of traditional religious views," the hospital – through the discovery process – will now have the opportunity to prove that the employee's veganism, while perhaps a strongly held dietary and lifestyle preference, does not rise to the level of religious belief, even under the Supreme Court's broad definition.
Although healthcare employees refusing mandatory flu vaccinations do not usually base their refusal on veganism, we can expect to see more situations arising out of a conflict between mandatory flu vaccination policies and employees' religious convictions. For example, six employees of an Indiana hospital were terminated and two more resigned after they refused a mandatory flu shot in December on religious grounds.
Many hospitals require that employees who have patient contact receive annual flu vaccinations. For example, the Johns Hopkins website states: "Each year about 36,000 people die from the flu. These deaths can be prevented. Requiring that our physicians and staff who enter clinical areas receive an annual flu vaccine protects our patients, visitors, colleagues and families. Making the flu vaccine mandatory is a step that has already been taken by . . . many hospitals throughout the nation." Johns Hopkins' mandatory flu policy does have exceptions, however, for medical conditions in which flu vaccination is contraindicated as well as for "conflicts with sincerely held religious beliefs." In the latter situation employees are to submit requests for accommodation to be reviewed by the hospital's Human Resources Department and Office of Institutional Equity.
The Equal Employment Opportunity Commission in its Technical Assistance Document "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act," warns employers that they may not compel all employees to get vaccinated. While generally a mandatory vaccination program is permissible, the EEOC cautions that an employer must provide a "reasonable accommodation" for employees with a disability or medical condition for which vaccination is contraindicated (such as a severe allergy to eggs or underlying medical condition compromised by a flu vaccine), or for those who have a "sincerely held religious belief, practice or observance" that prohibits the employee from getting the influenza vaccine. An open question is whether transferring an employee in a patient-contact position, such as a nurse or physical therapist, to another position in which there is no patient contact, such as to the record-keeping department, would constitute a reasonable accommodation.
We are continuing to follow religious discrimination issues applicable to healthcare employers and will continue to provide updates as new developments occur.
Photo credit: biggishben