In November, I posted about whether a hospital employee could avoid a mandatory flu shot based on her sincerely held beliefs of veganism.
Today, mandatory flu shots were back in the news. This time around, a pregnant nurse from Pennsylvania has been fired after refusing a mandatory flu host. Here, the employee requested an exemption based on a health/medical reason rather than a religious exemption.
The issue is an interesting one, pregnancy is generally not considered a disability. However, pregnancy related impairments can rise to the level of a disability under the Americans with Disability Act (“ADA”). Furthermore, the Pregnancy Discrimination Act (“PDA”) prohibits pregnancy related discrimination. Accordingly, where an employer provides accommodations for non-pregnant employees, an employer may run into trouble by not similarly accommodating a pregnant employee. So, here if the hospital provided an accommodation for another employee, one perhaps allergic to the flu shot, and would not similarly provide an accommodation to this employee, then a PDA claim might be viable. However, based on the news reports, it appears that the employee was unable to get a note from her doctor that included an actual medical reason that she could not get the flu shot. As such, a PDA claim seems like an uphill battle in this situation.
The Equal Employment Opportunity Commission (“EEOC”) has provided some guidance on mandatory flu shots.
- May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
- No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
- Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.
Again, here the employee has not raised a religious basis for refusing the flu shot and her doctor has not provided a medical reason that she cannot receive the flu shot.
Finally, earlier this year here in Florida, Tallahassee Memorial Hospital settled a PDA claim with a pregnant employee who was forced to take an unpaid leave when the hospital would not honor a doctor imposed lifting restriction. Other co-workers, with similar duties at the hospital were granted accommodations and transferred to light duty when they had temporary physical disabilities, but the pregnant employee’s supervisor told her that the hospital did not make accommodations for its pregnant workers.
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Dori K. Stibolt is a senior associate with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.