By J. Steven Collins

On September 23, 2016, the EEOC filed suit in the Pennsylvania Federal Court against St. Vincent, taking the position its mandatory flu vaccination policy violates Title VII’s religious discrimination prohibition. This is the most recent EEOC challenge of flu inoculation policies, having already filed suit against hospitals in Massachusetts and North Carolina. St. Vincent provided exceptions for religious beliefs and for medical reasons, but the EEOC found discrimination because all six waivers requested based on religion were denied while all 14 requests for waivers for medical reasons were granted. Ironically, two years ago, the Department of Health and Human Services argued before the Supreme Court in Burwell v. Hobby Lobby the provisions of the Affordable Care Act requiring employers provide health insurance for employees with coverage for contraception did not violate the Religious Freedom Restoration Act, which prohibits the federal government from taking action that substantially burdens the exercise of religion unless the mandate is the least restrictive means of serving a compelling government interest. The Supreme Court, in a 5-4 decision, ruled against the government and for Hobby Lobby.  The EEOC seems also at cross purposes with the admonishment of the Department of Health and Human Services on its flu.gov site that “everyone six months of age and older should get the flu vaccine.”

What employers need to know is the standards for determining whether a policy violates Title VII are based upon the interpretative law of Title VII and not the more stringent standards of the Religious Freedom Restoration Act at issue in Hobby Lobby. The EEOC takes the position a “sincerely held religious belief” under Title VII is broadly defined and is not confined to traditional, institutionalized faiths but also includes atheism or a sincerely held belief involving “ultimate ideas about life, purpose and death.” Employers considering a mandatory vaccination policy need to engage fully their human resource professionals and legal team and test the policy against current EEOC pronouncements. Vaccination policies cover broad numbers of employees and increase the potential for multiple claims of discrimination. Multiple claims increase the likelihood the EEOC will challenge the policy.

 

J. Steven Collins serves in an Of Counsel role in Spicer Rudstrom’s Knoxville office. He is an experienced litigation attorney practicing in employment law, domestic relations and premises liability. He has achieved an AV Preeminent rating from Martindale-Hubbell, is past president of the Knoxville Bar Association and is a graduate of Leadership Knoxville.