Employer Flu-Shot Mandates Become Clearer

Thirty-nine states are experiencing unusually high influenza doctor visits, with most health experts agreeing that vaccines offer the best way to fight the influenza virus.

But, many healthcare employers wonder if they can legally require their employees to get the flu shot.

Recently, the Third Circuit Court of Appeals provided some good news for healthcare employers who require that their patient-facing employees receive flu shots.

This new ruling clarifies how healthcare employees can claim a religious exemption to avoid getting the flu vaccine.

The National Law Review published an article from Nathaniel M. Glasser, with Epstein Becker Green, suggesting that employers should be mindful not to categorically deny all requests for religious exemptions based on anti-vaccination beliefs.

Mr. Glasser cited Fallon v. Mercy Catholic Medical Center, where the Third Circuit Court considered the religious exemption, clarifying what may qualify as such. Fallon had sued Mercy for wrongful termination alleging religious discrimination and a failure to accommodate in violation of Title VII of the Civil Rights Act of 1964.

The Court sided with Mercy, and the Third Circuit affirmed the decision, relying on the definition of religion, as adopted in Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981).

The Court concluded that Fallon’s belief that “the flu vaccine may do more harm than good” amounted to nothing more than a concern about the health effects of the vaccine.

The National Law Review article said ‘employers also should follow the recent developments within the Department of Health and Human Services (HHS).

On Friday, January 19, 2018, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced a new proposed rule to enforce 25 existing statutory conscience protections for Americans involved in HHS-funded programs.

“Today’s actions represent a rollback of policies that had prevented many Americans from practicing their profession and following their conscience at the same time,” said Acting HHS Secretary Eric D. Hargan.

This proposed rule would provide protections for healthcare workers who refuse to participate in services that run counter to their religious beliefs or moral convictions.