Reasonable Accommodation

To be reasonable, an accommodation need not be the one preferred by the employee. In fact, the case law suggests that if the accommodation imposes more than minimal costs to the employer, the employer does not have to provide it.¹² As we address separately below, given the high burdens of influenza vaccine accommodations, health care institutions may not be required to provide a religious exemption at all. To date, no good, viable substitute for influenza vaccination prevents transmission of the flu. Masks, the most commonly utilized alternative, have substantial problems. Evidence suggests that mask compliance is limited and that its effectiveness in preventing transmission is mixed.¹³ Enforcing a continuous requirement like masks is clearly more onerous and less effective compared to a one-time vaccination. The potential costs of preventable influenza cases include missed workdays and sick or dead patients — both significant burdens for hospital employers.¹⁴

Sincere Belief

The Equal Employment Opportunity Commission (EEOC) — the government agency tasked with enforcing Title VII — defines religion as “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”¹⁵ The jurisprudence suggests that religious protection under Title VII is much broader than merely a belief in God. A recent case suggests, for example, that it could be interpreted to include a vegan worldview.^{Reference Opel, Sonne and Mello16} However, protection from religious discrimination is not unlimited, as discussed in the next sections. To justify an accommodation, the belief must be “sincerely held.”¹⁷ In making this evaluation, a hospital employer may consider factors that undermine the sincerity of the employee's religious beliefs, such as an earlier request with a secular reason or behavior inconsistent with regard to the belief.¹⁸

While the EEOC's interpretation is not authoritative — courts have and do independently interpret Title VII — its definition is important in two ways. First, the EEOC uses this definition in deciding whether to sue employers. Because the EEOC is a repeat player with decades of experience interpreting federal anti-discrimination laws, the lawsuits brought by the agency may be a warning sign to health care institutions that there is a real problem. Second, courts may accord deference to reasonable agency interpretations of their own statutes.¹⁹

Is a Religious Exemption Desirable or Necessary?

Since the risk of litigation also exists with a religious exemption in place — and, as we describe, may increase if the religious exemption does not meet legal requirements — health care institutions should seriously consider whether it is desirable or necessary to offer a religious exemption at all. Title VII applies whether or not the hospital has an official religious exemption. An employee may request accommodation even without formal exemptions, and the hospital will need to consider what is required under federal law. Offering a formal religious accommodation can have the advantage of institutionalizing procedures and guidance. On the other hand, creating an official exemption can be seen as embracing or legitimizing refusal. Importantly, it may also increase the visibility of refusal and lead to more exemption requests, including by employees who may otherwise not ask for them. Policies can be put in place to address a request for accommodation without creating a formal exemption. The question then becomes whether or not the Civil Rights Act of 1964 requires accommodating an employee who states a religious opposition to influenza vaccines — or whether an accommodation is otherwise desirable or necessary.

During the 2009 H1N1 epidemic, the EEOC issued guidelines regarding influenza mandates in the work-place that may be interpreted to require a religious exemption.²⁰ Specifically, the guidelines stated that

This language, however, does not mean that the EEOC interprets the law to require a religious exemption. The document reiterates that an exemption is only required if it is not an “undue hardship.” The bar for what constitutes an undue hardship is low. Our reading is that employers have a strong case that the risks posed by influenza transmission from an unvaccinated hospital employee constitute more than a de minimis burden. As we discuss above, masks are not an effective precaution as a substitute, given the mixed evidence on their effectiveness and the difficulty to enforce constant wearing.²² Reassigning an employee is an option, but is not always feasible. A hospital that concludes that a religious exemption imposes a real burden can likely justify not providing one, though it would still have to consider such requests to comply with Title VII.

Religious freedom is important in the United States, among other things because of historical discrimination against religious groups.^{Reference Inazu23} However, Title VII has never required unlimited and unrestricted accommodation of religious beliefs because other interests also matter. In the health care institution context, a HCW's desire not to vaccinate against influenza increases the risk of influenza transmitted to fellow employees and patients. This great risk — in a profession that is already highly regulated — is why ethics scholars support mandates.²⁴ The risk to life is not eliminated or curtailed because the employee's reason not to vaccinate is religious. Even when weighed against the iniquities of religious discrimination, the burden on the hospital — and its patients — likely constitutes an undue hardship.

Despite a strong legal argument that health care institutions need not provide religious accommodations in this context, we found that ironically, all the health care institutions that faced Title VII litigation challenges did, in fact, provide a religious exemption. In some contexts, public (though not private) health care institutions may see no other choice. Religious Freedom Restoration Acts in some states require an exemption.^{Reference Nathanson25} In the cases we review, however, the health care institutions seemed to act out of respect for religious values, or a belief — supported by some — that an exemption is required.²⁶ HCW complaints focused on the application of these accommodations, not on the lack of one. We examine these cases as cautionary tales for health care employers.

What is a Sincere Religious Belief?

The first lesson is that health care institutions may be held liable for their evaluation of what constitutes a “sincere religious belief.”³¹ A recent consent decree between the Saint Vincent Hospital in Eerie, Pennsylvania and the EEOC, underscored that an employer cannot limit religious exemptions to people belonging to an organized religion that prohibits vaccines.³² Similarly, in EEOC v. Ozaukee County, a nursing home was sued because a requirement for an exemption was a letter from a clergy person. Because the HCW did not belong to an organized religion and could not get such a letter, she was denied the exemption.³³ Such limitations discriminate against people who are not part of an organized religion but who hold sincere religious beliefs against vaccines.

We agree that providing equal treatment to people with similarly sincere beliefs, whether or not their beliefs find their roots in an organized religion, is appropriate, and that any other approach would be discriminatory. But we also understand why health care institutions would be inclined to use this approach, which gives them an objective tool to assess “sincerity” that is easier to use than an examination of an employee's heart and mind. Nevertheless, this approach is clearly impermissible.³⁴

A reasonable alternative may be to ask an employee requesting an exemption to write out and explain the beliefs behind the refusal (as suggested in Opel³⁵). This approach has three important advantages. It allows the hospital to examine the sincerity of the religious belief while avoiding the pitfall of discriminating between organized religions and other sincere religious beliefs. It also reduces the risk of illegally judging the relative merit of a religious belief.³⁶ Notably, litigation from the school exemptions context teaches us that a member of a religion that supports vaccines — like Catholicism or Judaism — may still claim exemption based on personal religious beliefs against vaccines.³⁷ This approach helps to address these potential variations and sources of sincerely held religious beliefs.³⁸

Of course, not every belief qualifies as religious. In Fallon v. Mercy Catholic Medical Center ³⁹ the 3^rd Circuit examined the limits of what constitutes “religious,” and suggested a clear and useful test. The three-part test adopted by the 3^rd circuit (drawing on Africa v. Commonwealth of Pennsylvania ⁴⁰) included the following inquiries: (1) does the religion address fundamental and ultimate questions, (2) is it a comprehensive belief system, and (3) is it more than an isolated teaching, as often recognized by formal and external signs.⁴¹

The 3^rd circuit concluded that the plaintiff, Mr. Fallon, failed this test because his beliefs did not address fundamental matters, but rather were based on disbelief of the scientific consensus that the vaccine is safe. The court wrote, “the basis of his refusal of the flu vaccine — his concern that the flu vaccine may do more harm than good — is a medical belief, not a religious one.” The decision also pointed out that the one moral commandment Mr. Fallon relied on—that he should not do harm to his body — was “an “isolated moral teaching”; by itself, this belief was not a comprehensive system of beliefs about fundamental or ultimate matters.”⁴²

When is a Religious Accomodation “Reasonable”?

A second lesson gleaned from recent cases is that if a hospital provides religious accommodations, it may face litigation over what is “reasonable.” In Robinson v. Children's Hospital Boston, a HCW claimed that her religion opposed vaccines and asked for an accommodation. The hospital attempted to locate a position outside of patient areas for the HCW. When no such position was found, the employer treated her termination as a resignation, which allowed her to apply to open positions in the future. After costly litigation, the federal district court ruled for the hospital, finding that the employer had gone above and beyond its duty under Title VII. Robinson thus also suggests that efforts to reassign an employee to another position can be a reasonable accommodation, even if such efforts are not successful.

When is Disparate Treatment a Problem?

Note that health care institutions may face litigation even when policies, on their face, appear reasonable, especially if there is any disparate treatment between employees seeking an exemption and those not treating an exemption. In EEOC v. Mission Hospital, for example, the EEOC claimed that the hospital's September 1^st deadline to request an exemption from an influenza vaccine mandate was unreasonable, even though the deadline corresponded with flu season. The court denied summary judgment, and the parties settled, with the hospital compensating the employees — though not reinstating them — and agreeing to offer employees seeking a medical and religious exemption the same grace period that it offered all other employees. It also promised to inform employees more clearly of the influenza mandate policy, including exemptions.⁴³

Ultimately, the core issue in Mission Hospital was the differential treatment of employees seeking exemption from the mandate and employees not seeking an exemption. Employees who intended to get vaccinated, but who missed the deadline, were offered a grace period to comply.⁴⁴ Those who missed the deadline and intended to request an exemption, were not offered the same grace period. The EEOC used this treatment as a yardstick by which to evaluate whether there was underlying religious discrimination.

In Memorial Hospital, a similar case involving disparate treatment — the latest to date — the EEOC brought suit against a hospital in Michigan which rescinded an employment offer to a medical transcriptionist who claimed religious opposition to influenza vaccines.⁴⁵ The basis of the claim was that the prospective employee offered to wear a mask during influenza season. While the hospital refused her accommodation, it did allow other employees with medical problems to wear a mask.

Thus, a third lesson is that different treatment of employees requesting religious exemptions compared to employees seeking medical exemptions or unexempt employees may trigger EEOC scrutiny. That does not mean employers cannot make distinctions. It just means that health care institutions need to be mindful and make sure distinctions can be well justified. At least two justifications may support, for example, distinguishing between employees seeking religious exemptions and those seeking medical exemptions. First, legally, the framework for seeking medical and religious exemptions is different — while the standard for undue burden under Title VII is very low, as described, the standard for refusing exemptions under the Americans With Disabilities Act, which would govern medical exemptions, is much higher.⁴⁶ On the merits, too, employers may justifiably see medical exemptions as less potentially common than religious ones. The acknowledged medical barriers to receiving flu vaccines are very few, and the number of healthcare workers in that category should be minute, but any number may claim a religious exemption. Health care institutions need to be aware, however, that disparate treatment among employees can lead to closer scrutiny from the EEOC and potentially increase the chances of litigation.

What about HCWs without Patient Interaction?

Finally, a fourth important lesson from recent litigation is that health care institutions should carefully evaluate the benefits of vaccine or masking requirements for employees who do not interact with patients, and consider whether a requirement that these employees vaccinate or mask is appropriate. For such employees, accommodation may be considered a de minimis burden, since the risk of harm is relatively remote. In an open case, EEOC v. Baystate, a HCW with religious objections to vaccines was terminated after she did not wear the required mask during work hours. She then sued. The EEOC's complaint on her behalf emphasized that the employee was not working in areas in which she had contact with patients. We do not know how the court will rule, but health care institutions should consider whether a masking requirement (or even a vaccination requirement) for employees who do not interact with patients can be justified, substantively and legally.