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As More Health Care Employers Adopt Mandatory Vaccine Policies, DOJ and HHS Push Back on Behalf of Individual Workers

In the midst of one of the worst flu seasons to date, many hospitals and other health care organizations enforced mandatory flu vaccine policies for their employees to boost vaccination rates. However, recent litigation and governmental actions should serve as a reminder that health care entities should carefully consider safeguards whenever implementing mandatory vaccine policies and to not categorically deny all requests for religious exemptions based on anti-vaccination beliefs.

In January, the Department of Health and Human Services (HHSannounced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR) and released a proposed rule to provide protections for health care workers who refuse to participate in services that run counter to their religious beliefs or moral conviction. Recent legal challenges to mandatory vaccination policies in the health care context have also gained media attention.

Earlier this month, the United States Department of Justice (DOJ) accused a county-owned skilled nursing facility (SNF) in Wisconsin of violating a certified nursing assistant’s religious rights when it required her to be vaccinated or be terminated if she refused.  Although the certified nursing assistant believed that the Bible prohibited her from receiving the vaccine, the SNF refused to grant her an exemption from its vaccination policy because she was unable to produce a written statement from the clergy leader supporting her request, as the SNF’s exemption policy required. The DOJ complaint asserts that the SNF’s vaccination policy denies religious accommodations to employees who do not belong to churches with clergy leaders and that the SNF unlawfully denied the employee a reasonable accommodation for her religious beliefs when it refused her request for an exemption.

However, not all requests for accommodation must be honored.  In Fallon v. Mercy Catholic Medical Center, an employee sued his hospital employer for wrongful termination alleging religious discrimination and a failure to accommodate in violation of Title VII of the Civil Rights Act of 1964 when the hospital terminated him for refusing to get his annual flu shot. The Third Circuit Court of Appeals sided with the hospital and held that the employee’s “sincerely held beliefs” were not religious but based on health concerns, and therefore, the hospital did not violate Title VII.

In another recent development, a Massachusetts state Superior Court dismissed a lawsuit filed by the Massachusetts Nurses Association against Brigham and Women’s Hospital for lack of standing when the union challenged the hospital’s flu vaccination policy. The dismissal occurred a few months after the court denied the union’s request for an injunction.  Thus, a plaintiff’s standing to challenge mandatory vaccination policies will be scrutinized.

Key Takeaways

Despite the actions of DOJ and HHS, health care employers are well within their rights to implement a mandatory flu vaccination policy, especially considering the potential implications to patient safety. Employers need to be prepared to handle requests for reasonable accommodations made by employees who have sincerely held religious beliefs against flu vaccination.  When presented with such a request for accommodation, employers should engage in the interactive process with the employee as outlined in this recent blog post.

To lessen the risk of infringing on worker’s rights, many health care entities are employing non-mandatory tools and policies to boost employee vaccine participation through positive enforcement rather than with the threat of being fired. For example, health care entities can ensure that employees are educated and reminded about the benefits of being vaccinated, provide free and convenient access to vaccines, and issue small incentives and rewards to employees who are vaccinated.

Whenever implementing a mandatory vaccination policy, employers should be prepared for a challenge. Essentia Health required its employees to receive the flu vaccination and sustained a public legal challenge from three hospital unions.  Essentia prevailed, discharging 50 workers who refused to be vaccinated.

Lastly, health care entities should review applicable state-worker vaccination laws to ensure they are in compliance with such laws when deciding upon vaccination policies.

©2019 Epstein Becker & Green, P.C. All rights reserved.

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About this Author

Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing
Member

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

  • Defending clients in employment litigation, from single-plaintiff to class action disputes,...

202-861-1863
Jonathan K. Hoerner, Epstein Becker law firm Life Sciences Attorney Washington D.C.,
Associate

JONATHAN K. HOERNER is an Associate in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green.

Mr. Hoerner:

  • Defends health care and life sciences companies in litigation as well as in connection with federal and state government investigations, qui tam actions, and internal investigations related to health care fraud
  • Advises clients regarding fraud and abuse issues arising under anti-kickback laws, the Stark Law, and the False Claims Act
  • Assists clients in evaluating, developing, and implementing health care corporate compliance programs and compliance training programs
  • Advises a variety of health care providers—including hospitals, physician groups, nursing homes, ambulance providers, and various other health care facilities and businesses—in transactional and regulatory compliance matters arising under Medicare, Medicaid, and other third-party reimbursement programs
  • Advises Medicare Part C and Exchange plans on matters concerning risk adjustment payment including retraction and self-disclosures to CMS, enforcement counseling, and defense

At Saint Louis University School of Law, Mr. Hoerner completed concentrations in Health Law and Civil Litigation and achieved Academic Excellence Awards in Healthcare Fraud and Abuse, Healthcare Finance and Business Planning, Electronic Discovery, Legal Profession/Ethics, and Civil Litigation Practice. He also served as the Lead Editor of the Saint Louis University Law Journal.

Mr. Hoerner served as a Legal Extern at one of the nation’s largest nonprofit health care systems and as a Judicial Extern for the Honorable David D. Noce of the U.S. District Court for the Eastern District of Missouri.

202-861-1826
Olivia Seraphim, Epstein Becker Law Firm, Washington DC, Healthcare Attorney
Associate

OLIVIA SERAPHIM is an Associate in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green.

Ms. Seraphim:

  • Provides assistance to health care companies and providers in federal False Claims Act and other litigation matters

  • Assists health care organizations with government investigations concerning alleged violations of federal and state health care fraud and abuse laws

  • Advises...

202-861-1375