Efforts by health care related employers to mandate flu vaccination for all of their employees appears to have suffered a setback in New Jersey.  Last week, the Appellate Division issued its decision in Valent v. Board of Review, Department of Labor and Hackettstown Community Hospital and reversed the denial of unemployment benefits for a nurse who was fired after she refused to undergo flu vaccination.  The Hospital had issued a mandatory flu vaccination directive, which required vaccination by all employees unless there was a documented medical or religious exemption request submitted by an employee.  A nurse who was employed full time at the Hospital refused to be vaccinated for the flu, but did not allege an exemption based on medical or religious grounds.  Thereafter, the Hospital terminated the nurse’s employment based upon her refusal to be vaccinated.  When the nurse applied for unemployment compensation benefits, the Hospital opposed her application.  After her claim for unemployment benefits was denied, the nurse sued the Department of Labor and the Hospital, alleging that allowing a religious-based exemption and not a secular one violated the plaintiff’s constitutionally protected right to freedom of expression under the First Amendment of the Constitution.

The Appellate Division held that the nurse should have been awarded unemployment compensation benefits.  The court found that by exempting employees who can produce religion-based documentation, the Hospital employer’s flu vaccination policy was not exclusively driven by health-related concerns.  The Appellate Division found that denying the nurse’s application to receive unemployment benefits based only on her unwillingness to submit to the employer’s religion-based policy violated the nurse’s rights under the First Amendment.  The Appellate Division also found that the employer did not produce evidence showing that the nurse’s refusal to comply with its flu vaccination policy for purely secular reasons adversely impacted the Hospital or otherwise undermined the nurse’s ability to perform her job duties.  Therefore, the employer did not prove that the nurse was guilty of misconduct which would have disqualified her from receiving unemployment compensation benefits.