?Many companies continue to struggle to accommodate employees who don’t want to get vaccines because of religious objections.
Children’s Healthcare of Atlanta (CHOA) is in hot water after firing an employee for requesting a religious exemption to its influenza vaccination policy. In December, the U.S. Equal Employment Opportunity Commission (EEOC) sued the pediatric health care company.
“Religion is defined to include all aspects of religious observance and practice, as well as belief, and the EEOC stands ready to enforce an employer’s statutory obligation to reasonably accommodate the religious observances and practices of its employees where doing so would not be an undue hardship on the conduct of the employer’s business,” said Darrell Graham, the EEOC’s district director of the Atlanta office, in a statement.
CHOA had previously granted the employee a religious exemption in 2017 and 2018, according to the EEOC’s lawsuit. But in 2019, when the worker again requested a religious exemption to CHOA’s flu vaccination requirement based on religious beliefs, the company denied the request due to a rise in flu-related deaths and fired him, despite the employee’s “extremely limited interaction with the public or staff.”
The EEOC pointed out that such conduct violates Title VII of the Civil Rights Act of 1964, which prohibits firing an employee due to religion and requires that sincerely held religious beliefs be accommodated by employers.
“It would not have been an undue burden for CHOA to continue accommodating its employee as it had in 2017 and 2018,” said Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office, in a statement. “Instead, CHOA inexplicably changed its stance on flu vaccination exemptions for this maintenance employee in 2019 and failed to consider any meaningful reasonable accommodations for his sincerely held religious beliefs.”
CHOA released a statement to the Society for Human Resource Management (SHRM) reinforcing its commitment to diversity and inclusion as well as the company’s pledge to avoid discriminating based on any protected category, including religion.
“At Children’s, the safety of our patients and our staff is our utmost priority,” the statement read. “The Children’s flu exemption committee reviews vaccine exemption requests. Following an increase in flu-related deaths among kids in 2019, we modified our vaccination exemption practices related to staff who are regularly exposed to patients to align with [the U.S. Centers for Disease Control and Prevention] CDC recommendations and to further protect our most-vulnerable patients.”
Religious Exemptions and Hospital Settings
Mark Kluger, an attorney and founder of law firm Kluger Healey LLC in Fairfield, N.J., said the hospital’s position in defense of the lawsuit will likely be that allowing unvaccinated employees to work in the hospital creates an undue hardship.
The legal standard for undue hardship in the context of a request for a religious exemption is relatively minimal, he said.
“In other words, the hospital needs only to show that accommodating the exemption will be more than a de minimis burden,” Kluger explained. “In this context, the burden can include the risk of the spread of the flu to the co-workers, patients and general public.”
COVID-19 changed some health care systems’ calculus for determining vaccine exemptions. Many health care systems have granted religious exemptions for flu vaccinations over the years, but many of those same institutions took a different view of requests for religious exemptions to COVID-19 vaccines.
The reason for the policy change, Kluger explained, stems from evidence that the coronavirus has shown to be more severe than the flu and the public fear factor has been far greater.
“Among the positions that health care institutions have taken in defending some of these religious discrimination cases resulting from COVID vaccine mandates is that the public needs to have confidence that they can go to [the] hospital for whatever ailment and not risk getting COVID on top of their reason for the visit as a result of the staff being unvaccinated,” Kluger said.
Tips for Organizations
Fewer employers are requiring COVID-19 vaccinations, according to a survey in a recent SHRM Online article. About a third of companies require workers to get COVID-19 vaccinations, and fewer employers required booster shots in 2022 than they did in 2021.
During the winter months, when flu and COVID-19 cases spike, make sure vaccination policies and exemption procedures are in place. There are four steps employers can take to handle religious objections to vaccine requirements:
- Create a clear process for employees to follow.
- Exercise caution when reviewing whether a religious belief is “sincere.”
- Consider alternative accommodations and undue hardship.
- Account for changing circumstances.
Beyond vaccines, employers need to provide their religiously observant employees with the same flexibility they extend to other workers, according to Kenneth Marcus, founder of the Louis D. Brandeis Center for Human Rights Under Law.
If they provide leeway to nonreligious workers on scheduling or hairstyle, for example, they should provide that same courtesy to their religious workers, he explained.
“Before they push back on requests for religious accommodation, managers should think creatively about whether they can satisfy the requests without incurring undue hardship,” Marcus said.
