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Volume XII, Number 338


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December 01, 2022

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Taking Hospital Employees Down from their Pedestals: Why Title VII Religious Discrimination Should Not Be Applicable for Immunizations

Imagine for a moment that you are an employee at your local hospital, whether you are a doctor, an anesthesiologist, a nurse, or even the person who delivers meals to patients throughout the day. For all of these years, you have been working at that hospital, treating and tending to thousands of patients, but you also carry a secret that most of your patients might not be aware of – because of your religion, you refuse to get certain (or all) immunizations. One day, the hospital administration finds out about your immunization refusal, which violates their independently written policies or possibly policies provided for by state law. Or maybe you moved to a new state and the new hospital you start working for has different policies than your previous hospital or state. Suddenly, it has come to a point where you are forced to choose: do you stand by your religion and continue to refuse immunizations, thereby losing your employment, or do you unwillingly go against your religion and get the necessary immunizations to maintain your employment?

This is a very real choice that many health care employees have faced in recent years. In fact, eight employees at Indiana University Health’s Goshen Hospital had to make that choice in December 2012.[i] In September 2012, the hospital informed its staff that everyone would be required to receive a flu vaccination unless they qualified for an exemption.[ii] The hospital’s requirements came as a recommendation from the U.S. Centers for Disease Control and Prevention, or CDC, the American Medical Association (AMA) and other major regulatory health agencies.[iii] A total of 26 employees filed for exemptions, and 11 of them were granted appeals for religious reasons.[iv] The eight employees who were ultimately fired for refusing the vaccine did not meet the criteria for a religious exemption, according to the hospital.[v] Ethel Hoover, a nurse, had worked at Goshen Hospital for 22 years before being fired.[vi] Joyce Gingerich, another nurse, had worked there since 1987.[vii] Sue Schrock worked for the hospital as a hospice nurse on and off for the past 40 years.[viii]

But is the decision that the Goshen employees had to make fair? The answer depends on who you ask. Is it fair to the employee, who has been working there for years, to have to choose her job over her religion, or alternatively to get immunizations that go against her religion? On the contrary, as a patient who enters that local hospital needing medical treatment, is it fair to you to be subjected to treatment by a professional who may possibly be carrying any number of infections that immunizations were designed to prevent?

But with Title VII prohibiting employers from religious discrimination, and with hospital employees seeking religious exemptions from immunizations, that worry is a very real reality the second a patient sets foot inside those hospital doors. As a matter of public policy and for patient safety overall, Title VII religious discrimination claims should not be applicable for hospital employees with regards to exemptions from immunizations.

Part I will provide a general background on federal and state exemption policies related to hospital employee vaccinations. Part II will address the legal implications of religious exemptions for immunizations under Title VII, and look at individual state statutes and case law. Part III will discuss the ethical and medical problems that develop from allowing religious exemptions for hospital employees, as well as the counterarguments that have been raised.

I. Background on Immunization Exemptions

A.. Federal Exemption Policies

Title VII states that:

“It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion . . .; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s . . . religion . . .[ix]

Under Title VII, religion is one of the five protected classes.[x] Under Title VII’s definitions section, “the term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”[xi]

Other than Congress’ National Childhood Vaccine Injury Act of 1986[xii] (NCVIA), federal law is relatively silent on immunizations. The NCVIA essentially provides that compensation may be paid for death or injuries as a result of childhood vaccinations.[xiii] The NCVIA does not address the immunization requirement or exemption issue.

Even the CDC does not offer a national requirement with regards to immunizations or exemptions. The CDC’s Advisory Committee on Immunization Practices (ACIP) offers a lengthy list regarding immunizations for health care providers, but these are only recommendations and are not required to be followed.[xiv]

The American Medical Association (AMA) issued Opinion 9.133 in June of 2011,[xv] which says that physicians have an obligation to get immunizations. The opinion is tolerable of medical, religious, and philosophical exemptions[xvi] and is also cognizant of accommodations that may be provided.[xvii]

Therefore, because Title VII fails to address the issue specifically and there are no other federal laws governing immunization exemptions, there is no specific federal exemption policy.

B.  State Exemption Policies

While the federal government has largely left immunizations and related exemptions alone, the state policies tell a different story. The CDC published an Immunization Administration Requirements for Hospital Employees chart that looks at all 50 states and Washington, D.C., and is current through June 2013.[xviii] The chart identifies whether each state requires its hospitals to offer specific vaccines to its employees, ensure that they have received specific vaccines, or neither[xix] (emphasis added). The specified vaccines were Hepatitis B, Influenza, Measles/Mumps/Rubella (MMR), Varicella (chickenpox), and pneumococcal polysaccharide (pneumonia)vaccines.[xx] Of the 50 states, the chart indicates the following: forthe Hepatitis B vaccine, 17 states Offer, 2 states Ensure, and 31 states have no law; for the Influenza vaccine, 10 states Offer, 3 states Ensure, and 37 states have no law; for the MMR vaccine, 2 states Offer, 10 states Ensure, and 38 states have no law; for the Varicella vaccine, 1 state Offers, 3 states Ensure, and 46 states have no law; and for the pneumonia vaccine, all 50 states have no law.[xxi] Washington, D.C. has no law on the books to Offer or Ensure any of the vaccines for hospital workers.[xxii]

To clarify, however, many of the spaces in the CDC chart indicating “no law” stand for the fact that there are no specific laws requiring the hospitals to offer or ensure that specific immunization, but rather that they establish requirements consistent with current recommendations from the CDC and Occupational Safety and Health Administration (OSHA).[xxiii] What this means is that even though the state laws do not establish requirements, a hospital may still establish its own independent requirements that they will enforce as conditions of employment.

In the same CDC chart, it also lists whether the states who ensure that their employees have received certain vaccinations also allow medical, religious, or philosophical exemptions.[xxiv] Out of the 50 states and Washington, D.C., 13 states require hospitals to ensure that its employees have one of the vaccines listed on the chart.[xxv] Of those 13 states, only three states (Maine, Maryland and New Hampshire) have laws allow for religious exemptions to the immunization administration requirements for hospital employees.[xxvi]

It is important to note that some states may not require that the hospital ensure its employees have the specified vaccines, but that if they choose to do so, they may also be following whatever religious exemption policy they want. “About 55 percent of hospitals nationwide require their employees to get flu vaccinations, according to a Centers for Disease Control and Prevention survey of 800 hospitals . . . Workers face termination for refusing vaccination at close to 15 percent of the hospitals with mandatory policies. Still . . ., 69 percent [of those hospitals allow exceptions] for religious objections.[xxvii]

C. Examples of individual state policies and statutes

The statutes identified in this section below provide a representative sample of the state policies on immunizations. Many states, like Alabama for example, have no specific statute requiring any of the listed vaccines.[xxviii] However, these states do have broad statutes that give some guidance on immunization practices. Alabama’s law requires consistency with what the CDC and OSHA recommend[xxix], but only for facilities meeting the designation as a hospital.[xxx]

Maine, on the other hand, has specific statutes regulating that it’s designated healthcare facilities offers or ensures four out of the five vaccines.[xxxi] Maine defines “designated healthcare facilities as “a licensed nursing facility, residential care facility, intermediate care facility for the mentally retarded, multi-level health care facility, hospital, or home health agency.”[xxxii] Maine’s statute is strict; employees are not permitted to work without certifying that they have received the required vaccinations or have documentation of an exemption.[xxxiii] Although the statutes require Maine to ensure that certain immunization requirements are met, they do have specific provisions allowing for medical, religious, and even philosophical reasons, so long as they state the belief or reason for opposition in writing.[xxxiv]

II. Legal Implications: Title VII, Claims & Case Law

A.Prima facie case under Title VII

In order to bring a case under Title VII generally, a plaintiff must establish that there has been a prima facie case of discrimination.[xxxv]A prima facie discrimination case is generally established under Title VII if: 1) the employee is in a protected class, 2) the employee was qualified for the position, 3) the employee was rejected for the position, and 4) an employee outside of the protected class was selected for the position, or the employer continued to look for candidates.[xxxvi]Once the plaintiff establishes a prima facie case, the burden shifts to the employer to offer a “legitimate, nondiscriminatory reason for the employee’s rejection.”[xxxvii] In the health care field, there is no shortage of reasons to offer here. The hospital could argue for patient safety, for the employee’s personal safety, following the recommendations by the CDC, etc. If the employer is able to offer a legitimate reason, then the plaintiff may still prevail by demonstrating that the employer’s proffered reason is merely pretext for discrimination.[xxxviii]

B. Reasonable Accommodations and Undue Burdens

Title VII also requires an employer to reasonably accommodate the religious practices of an employee or prospective employee, unless doing so would create an undue hardship on the employer.[xxxix] Although reasonable accommodation has not been expressly defined in the text of Title VII, a reasonable religious accommodation has been interpreted as “any adjustment to the work environment that will allow an employee to practice his or her religion and eliminates the conflict.”[xl] The phrase “undue hardship” is not specifically defined under Title VII either, but it is thrown into the definition of “religion.”[xli]Courts are generally employer-friendly on this point, and look at whether the accommodation for the employee would result in “more than a de minimis cost” for the employer.[xlii]

A reasonable accommodation could possibly depend on the size of the hospital and the employee’s position as well. For example, a small versus large hospital, and a nurse versus a neurosurgeon. There may be an additional cost to the hospital for having to actually bring in a second physician who is immunized to treat that specific patient, or just to have as a backup physician. Such a cost could be viewed as “more than a de minimis cost” and constitute an undue hardship.[xliii]

Alan Phillips, a vaccine rights attorney, discussed some of the “accommodations” that his clients have been given in a recent e-mail.[xliv] These accommodations included having to “wear a mask for all 12 hours of their shift for 8 months out of the year,” “wear ribbons, colored dots on their nametags, or otherwise identify openly that they are not vaccinated,” and “sign statements with which they disagree, about their refusal to vaccinate putting others at harm, posing a risk to patients.”[xlv] Philips believes that mask policies exceeding CDC recommendations are unlawfully discriminatory.[xlvi] He also states that the ribbons, dots, or open identification of un-vaccinated employees may be religious discrimination by itself under Title VII, and that it may also raise Health Information Portability and Accountability Act (HIPAA)[xlvii] concerns.[xlviii]

C. Case Law

There is a general lack of case law challenging hospital immunization requirements. For example, the Goshen nurses that were mentioned previously have not filed a lawsuit. The nurses did file multiple appeals with the hospital, but they were denied. Phillips, who was hired by several of the Goshen nurses who were fired, said he worked with around 200 health care workers in at least 25 states on vaccine rights issues in the fall of 2012.[xlix] Phillips has never needed to go to court.[l]

In the landmark decision of Jacobson v. Massachusetts, the U.S. Supreme Court provides the legal framework for mandated vaccinations.[li] In Jacobson, the Court was examining the constitutionality of mandated vaccinations during a smallpox epidemic.[lii] Jacobson refused to be vaccinated, but his refusal “was not as unreasonable as it might seem at first glance: the vaccine was often contaminated with bacteria and other viruses, making the traditional immunization process dangerous. Still, Jacobson was prosecuted criminally for violation of the law.”[liii] Ultimately, the Supreme Court invoked the traditional police power by which legislatures establish regulations to protect the public health and safety[liv] found the compulsory vaccinations were permitted for public benefit.[lv]

In some cases, the issue is determining whether the employee’s claim even falls under the protected class of religion. In Friedman v. Southern California Permanente Medical Group, a case brought under California law rather than Title VII, the plaintiff was temporarily hired to work as a computer contractor for the medical group.[lvi] He worked in a warehouse, and had no contact with patients.[lvii]Prior to finishing the permanent hiring process, Friedman was told he had to get the mumps vaccine.[lviii] As a vegan, Friedman believed the vaccine violated his religious beliefs, because it is grown in chicken embryos.[lix] After refusing the vaccine, Friedman’s employment offer was withdrawn.[lx] Friedman unsuccessfully claimed that his potential employer had violated the California Fair Employment and Housing Act (FEHA).[lxi]

The Friedman court did look to Title VII for guidance to determine whether veganism fit under the definition of religion to help decide the case under the FEHA, but to no avail.[lxii] California’s FEHA and Title VII/EEOC differ significantly in their definitions of religion.[lxiii] The EEOC definition includes "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views."[lxiv] FEHA regulation 7293.1, on the other hand, defines "religious creed" as "beliefs, observances, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions."[lxv] The court concluded thatveganism was Friedman’s “personal philosophy” rather than a “religious creed” within the meaning of the FEHA.[lxvi]

Based on those differences in definitions and the court’s reasoning in Friedman, two inferences can be drawn. First, if the court had found that veganism was a “religious creed” under FEHA, Friedman likely would have won his case, especially since his position would not have him interact with patients. Second, if Friedman had brought his claim under Title VII rather than California’s FEHA regulation, the argument can be made that he would have won under those circumstances as well. Because the EEOC definition defines religion in a broader manner, Friedman may have been able to establish a prima facie case and move forward in the proceedings. Furthermore, it would likely not have been unreasonable or an undue burden for the employer to permit Friedman to refuse the vaccine, as he does not interact with patients for his position.

More recently, the court in Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. found another vegan’s immunization refusal to be a plausible religious claim.[lxvii] Chenzira was a customer service representative for the hospital, and she was discharged after refusing to get the flu vaccine.[lxviii] Because she was vegan, Chenzira believed that this was religious discrimination and she brought a claim against the hospital under Title VII.[lxix]  Much like the defendant in Friedman, the hospital filed a motion to dismiss, claiming that Chenzira had failed to state a claim for a protected religion.[lxx]  The court found it “plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views”[lxxi] and concluded that it would be “inappropriate to dismiss Plaintiff's claims for religious discrimination based on her adherence to veganism.”[lxxii] Thus, the court’s holding meant that, for the time being, Chenzira could refuse the immunization because of adequately held religious beliefs. The court did not address the hospital’s justification of Chenzira’s termination: patient safety.[lxxiii]

The courts will not hesitate to dismiss a case that fails to meet the essential elements of a religious discrimination claim. In Edwards v. Elmhurst Hosp. Ctr., Edwards claimed he had been discriminated against because of his religion by the Elmhurst Hospital Center, where he had worked for over 22 years.[lxxiv] Edwards was a Jehovah’s Witness, and he was informed in September 2009 that according to the New York State Department of Health, he was required to receive an H1N1 flu vaccination as a condition to his employment as a health care worker.[lxxv] The State permitted medical exemptions for the vaccine, but not religious ones.[lxxvi]

Edwards informed the hospital’s director that his religious beliefs did not allow him to get vaccinations that contain blood, like the H1N1 vaccine.[lxxvii] The director told Edwards that he would terminated if he refused.[lxxviii] Thus, Edwards had satisfied the first and second prong of a religious discrimination claim under Title VII.[lxxix] However, where Edwards claim fails is in the third prong: that he suffered an adverse employment action for failure to comply with the vaccine mandate.[lxxx] The vaccination mandate was suspended eight days after Edwards informed the director of his inability to comply, and he failed to allege any adverse changes in employment.[lxxxi]  Courts have held that "threats of termination do not, by themselves, constitute an adverse employment action."[lxxxii] As a result, the court recommended that the defendant hospital’s motion to dismiss the Title VII claim should be granted, and the recommendation was adopted.[lxxxiii]

Some immunization policies have been struck down because they violate collective bargaining agreements. In Va. Mason Hosp. v. Wash. State Nurses Ass'n, Virginia Mason Hospital (VMH) introduced a new ‘fitness for duty requirement in 2005.’[lxxxiv] Under this model, all staff must show proof of influenza vaccination, or face termination.[lxxxv] Only those who object based on a bona fide religious belief or who can document a medical contraindication are exempt from the policy.[lxxxvi] Unvaccinated staff had to wear masks throughout the facility indicating their unvaccinated status to patients and the public.[lxxxvii]

After VMH introduced this policy, the Washington State Nurses Association (WSNA) filed an unfair labor charge, arguing that the policy contradicted the collective bargaining agreement that the nurses had agreed to.[lxxxviii] Ultimately, the case was decided by an arbitrator[lxxxix], whose decision the 9th Circuit affirmed.[xc] VMH was not successful in this case, as the court gave deference to the language in the collective bargaining agreement and agreed with WSNA’s position.[xci] Although the issue here was based on contract law, the WSNA raised a valid argument: if the hospital employees began their employment without such vaccination requirements, is it fair to make those requirements apply retroactively to them? The court in Va. Mason Hosp. did not think so. However, if the case had been decided the other way, so that the fitness for duty requirement was acceptable, the employees would have been able request a religious exemption under Title VII, or state law if there was one on the books at the time.

III.  Ethical and Medical Implications

It should come as no surprise that there are ethical and medical concerns that are raised when it comes to allowing hospital employees to refuse vaccinations. The ACIP has recommended mandated flu vaccinations, stating that “this is not only a patient safety imperative, but it’s a moral and ethical obligation to those who place their trust in our care.”[xcii]

A modern version of the Hippocratic Oath, written by the Academic Dean of the School of Medicine at Tufts University, and used in many medical schools todays, mentions the following: “I will prevent disease whenever I can, for prevention is preferable to cure” and “I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm.”[xciii] This modern version of the oath can arguably be seen as placing an ethical obligation on doctors and physicians to help prevent disease and infection, possibly by taking the time to receive immunizations.

In the Virginia Mason Hospital case mentioned above, VMH argued that hospitals “are responsible for the well-being of their patients and staff and should consider only those policies that support ethical care.”[xciv] The point was also made that hospital employees are “professionals who assume special duties when they join the workforce of a health-care institution . . .  and the evidence overwhelmingly demonstrates that vaccination can prevent disease transmission to patients and helps maintain the viability of the workforce.[xcv] VMH may have lost their case, but the ethics and morality arguments are still highly relevant.

There is an over-arching public policy concern for public safety, especially when it comes to healthcare. According to the CDC, “over a period of 30 years, between 1976 and 2006, estimates of flu-associated deaths in the United States range from a low of about 3,000 to a high of about 49,000 people.”[xcvi] Are we doing hospital patients a disservice by allowing hospital employees to continue to work while not having common vaccinations such as the ones listed in the CDC chart referenced above? The health care field will likely always be changing and new viruses and diseases will appear, but if the research shows that these simple immunizations can help prevent a lot of the problems, it is difficult to see how and why religious exemptions should be available and granted.

Now, of course, there are counterarguments that have been made and will continue to be made by people seeking to keep religious exemptions alive. Some scholars simply don’t believe that vaccines are the answer to reducing patient risk.[xcvii] Marc Siegel, an associate professor of medicine at NYU, believes “there is simply no convincing evidence that forcing healthcare workers to be vaccinated under threat of losing their jobs cuts down on the risk of patients getting severely ill from, or dying from, the flu.”[xcviii] Siegel’s solution would be to just not allow workers with flu-like symptoms to come into work, or mandate that unvaccinated workers not be allowed to directly care for flu patients.[xcix] Most hospitals do try to keep sick employees home, but that doesn’t always work as planned. It would nearly impossible to find a hospital employee who has not gone to work on a day they were sick. And as far as Siegel’s second suggestion, unless the unvaccinated person is hardly ever at the hospital, the patients may still be indirectly at risk, which is why my solution is to not allow the religious exemptions. There are medical and philosophical exemptions as well, as the CDC chart[c] indicated, but the argument being made here for religious exemptions to be prohibited for hospital employees could easily be made for medical and philosophical exemptions as well.  

Some scholars and healthcare employees argue that vaccines are ineffective, and therefore they should be able to refuse them, for religious or any other reason. “It’s worth noting that the flu vaccine will not completely eliminate the flu, even if every employee gets a shot.”[ci] The CDC estimates don’t deny this; they estimated that the 2012-2013 flu vaccine was 56% effective (meaning anyone who got it was 56% less likely to get the flu).[cii] But the CDC still says that “the best way to prevent the flu is by getting vaccinated each year.”[ciii] A vaccine that is not given is 100% ineffective.[civ] And Alexandra Stewart, an immunization policy expert at the George Washington University, concedes that “no particular measure is 100% effective,” but agreed that “vaccination is worthwhile even if some people still get sick.”[cv]


Under Title VII, hospital employees, just like everyone else, are protected from religious discrimination. And unless it poses an undue burden, the hospital employees can ask for a reasonable accommodation in the form of religious exemptions for immunizations. The policies vary from state to state on what vaccines, if any, are required, and also what is required to obtain a religious exemption. But as our society advances and modern technology continues to produce improvements in the healthcare field, these Title VII religious exemptions are hindering the progress.

When a patient enters the hospital, it could be for any number of reasons, from a mild issue to something needing serious treatment and attention. The hospital may very well be able to fix the problem and send them home happy and healthy. But what if on the off chance, they come in contact with an employee who is not immunized for something as basic as the flu or pneumonia, and all of sudden, all of the progress made with that patient is put on hold, or lost, because the patient’s immune system wasn’t strong enough to fight off the preventable virus?

When Title VII was written, the drafters did not expressly contemplate a vaccine scenario. These medical advancements were still mostly in the future, but now that we have made them, and seen them work for patients, these religious exemptions should strongly be re-considered. We should not continue to put a patient’s health and safety at risk, when the problem could easily be prevented by prohibiting religious exemptions for immunizations for hospital employees.

[i]Ryan Grenoble, Goshen Hospital Employees Fired After Refusing Mandatory Flu Shot,Huffington Post (Jan. 3, 2013), (last visited Nov. 24, 2013).

[ii]Angelle Barbazon, Eight Hospital Employees Oppose Mandatory Flu Shots, Get Fired, Elkhart Truth (Dec. 31, 2012), (last visited Nov. 24, 2013).


[iv]Grenoble, supra note 1.



[vii]Barbazon, supra note 2.


[ix]Title VII § 703, 42 U.S.C. § 2000e-2(a) (2006).


[xi]Title VII § 701, 42 U.S.C. § 2000e(j) (2006).

[xii]42 U.S.C. § 300aa-10(a) .


[xiv]Immunizations of Health-Care Personnel, Recommendations of the Advisory Committee on Immunization Practices, Centers for Disease Control and Prevention, (last visited Oct. 24, 2013).

[xv]AMA Code of Med. Ethics, Opinion 9.133 (2011), (last visited Nov. 23, 2013).


In the context of a highly transmissible disease that poses significant medical risk for vulnerable patients or colleagues, or threatens the availability of the health care workforce, particularly a disease that has potential to become epidemic or pandemic, and for which there is an available, safe, and effective vaccine, physicians have an obligation to: 

(a) Accept immunization absent a recognized medical, religious, or philosophic reason to not be immunized. 

[xvii]Id. at 9.133(b)

(b) Accept a decision of the medical staff leadership or health care institution, or other appropriate authority to adjust practice activities if not immunized (e.g., wear masks or refrain from direct patient care).  It may be appropriate in some circumstances to inform patients about immunization status.

[xviii]Immunization Administration Requirements for Hospital Employees, Centers for Disease Control and Prevention, (last visited Oct. 24, 2013).





[xxiii]Id. at Footnote 20.

[xxiv]Immunization Administration Requirements for Hospital Employees, supra note 18.



[xxvii]Bureau of National Affairs, Human Resources Report: Report Says Flu Vaccination Less Effective Than Thought, but Advocates Still Defend It, 30 Human Res. Rep. (BNA) 1167, Oct. 29, 2012.

[xxviii]Immunization Administration Requirements for Hospital Employees, Centers for Disease Control and Prevention, (last visited October 24, 2013).

[xxix]SeeAla. Admin. Code r. 420-5-7-.04 (requiring each hospital to “establish vaccination requirements for employees that are consistent with current recommendations from the Federal Centers for Disease Control and Prevention and the Federal Occupational Safety and Health Administration (at a minimum to require annual influenza vaccinations”).

[xxx]See Ala. Admin. Code r. 420-5-7-.04, (defining a hospital as “a health institution planned, organized, and maintained for offering to the public generally facilities and beds for use in the diagnosis and/or treatment of illness, disease, injury, deformity, abnormality or pregnancy, when the institution offers such care or service for not less than 24 consecutive hours in any week to 2 or more individuals not related by blood or marriage to the owner and/or chief executive officer/administrator”).

[xxxi]SeeCode Me. R. § 10-144-264(2) (providing that “Designated Healthcare Facilities shall require of all employees proof of immunization or documented immunity against rubella, mumps, rubella, varicella, and hepatitis B” and “recommends and offers annual immunizations against influenza to all personnel who provide direct care for residents of the facility”).

[xxxii]See Code Me. R. § 10-144-264(1).

[xxxiii]See Code Me. R. § 10-144-264(2).

[xxxiv]SeeCode Me. R. § 10-144-264(3).

[xxxv]McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

[xxxvi]Id. at 802.


[xxxviii]Id. at 804.

[xxxix]Title VII § 701, 42 U.S.C. § 2000e(j) (2006); see generally Knight v. Conn Dep’t of Pub. Health, 275 F.3d 156 (2d Cir. 2001); see Robert Wolff and Alex Frondorf, Religious Accommodation Issues for the Health Care Employer: Termination of Pregnancy and Related Issues, 21 Health Law Reporter 586 (2012).

[xl]Robert Wolff and Alex Frondorf, supra note 46.

[xli]Title VII § 701, 42 U.S.C. § 2000e(j) (2006).

[xlii]TWA v. Hardison, 432 U.S. 63, 84 (1977); Philbrook, 479 U.S. at 67.


[xliv]E-mail from Alan Phillips, Attorney, Vaccine Rights, to author (Oct. 1, 2013, 8:52 EST) (on file with author).



[xlvii]Health Insurance Portability and Accountability Act of 1996. 45 CFR 160, 164.

[xlviii]Phillips e-mail, supra note 51.

[xlix]Barbazon, supra note 2.

[l]Sydney Lupkin, Eight Hospital Employees Fired For Refusing Flu Vaccines, ABC News, Jan. 3, 2013, (last visited Nov. 24, 2013).

[li]Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[lii]Id. at 27.

[liii]Edward P. Richards, et al.,The Smallpox Vaccination Campaign of 2003: Why Did It Fail and What Are the Lessons for Bioterrorism Preparedness?, 64 La. L. Rev. 851, 860 (2004).  

[liv]Jacobson, 197 24.

[lv]Id. at 38-39; Richards, supra note 63, at 861.

[lvi]Friedman v. Southern California Permanente Medical Group, 102 Cal. App. 4th 39, 44 (Cal. App. 2d Dist. 2002).





[lxi]Id. at 70.

[lxii]Id. at 56-59.

[lxiii]Id. at 67.

[lxiv]Id. at 67; 29 C.F.R. § 1605.1 (2002).

[lxv]California Code of Regulations, title 2, § 7293.1.

[lxvi]Id. at 70.

[lxvii]Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., No. 1:11-CV-00917, 2012 U.S. Dist. LEXIS 182139 (S.D. Ohio Dec. 27, 2012).

[lxviii] *1.

[lxix]Id. at *1-2.

[lxx]Id. at *2.

[lxxi] *10.

[lxxii] *11.

[lxxiii]Id. at *13.

[lxxiv]Edwards v. Elmhurst Hosp. Ctr., 2013 U.S. Dist. LEXIS 31083, at *1 (E.D.N.Y., Feb. 15, 2013), adopted by 2013 U.S. Dist. LEXIS 31082 (E.D.N.Y., Mar. 6, 2013).

[lxxv]Id. at *1-2.

[lxxvi]Id. at *4.


[lxxviii]Id. at *5.

[lxxix]Id. at *13.


[lxxxi]Id. at *14.

[lxxxii]Id. (citing Weisbecker v. Sayville Union Free Sch. Dist., 890 F.Supp.2d 215, 2012 U.S. Dist. LEXIS 130209, 2012 WL 3975049, at *14 (E.D.N.Y. 2012)).

[lxxxiii]Elmhurst, at *15.

[lxxxiv]Va. Mason Hosp. v. Wash. State Nurses Ass'n,511 F.3d 908, 911-912 (9th Cir. 2007).


[lxxxvi]Id. at 912.

[lxxxvii]Id. at 914, n. 3.

[lxxxviii]Alexandra M. Stewart et al., Mandatory Vaccination of Health-Care Personnel: Good Policy, Law, and Outcomes, 53 Jurimetrics J. 341, 345 (2013).

[lxxxix]Id. at 349-350.

[xc]Va. Mason Hosp., 511 F.3d at 911.

[xci]Id. at 915-916; Mandatory Vaccination of Health-Care Personnel: Good Policy, Law, and Outcomes, supra note 98.

[xcii]Todd Neale, ACIP: Mandate Flu Vaccine for Healthcare Workers, MedPage Today, Feb. 2, 2011, (last visited Oct. 21, 2013).

[xciii]Louis Lasagna, Hippocratic Oath, Modern Version (1964), (last visited Oct. 24, 2013).

[xciv]Alexandra M. Stewart et al., supra note 98 at 346.


[xcvi]Seasonal Influenza Q&A, Centers for Disease Control and Prevention, (last visited Nov. 25, 2013).

[xcvii]Marc Siegel, Required Flu Vaccines for Healthcare Workers Won’t Protect Patients, U.S. News & World History, Feb. 4, 2013, (last visited Dec. 1, 2013).



[c]Immunization Administration Requirements for Hospital Employees, supra note 18.

[ci]Richard D. Alaniz, Mandating Flu Vaccines: What Employers Should Know,, Oct. 4, 2013, (last visited Nov. 24, 2013).

[cii]Id.; Kevin Wang, Wisconsin Bill Would Eliminate Workplace Flu-Shot Requirement, Milwaukee-Wisconsin Journal Sentinel, May 19, 2013, (last visited Nov. 25, 2013).

[ciii]Alaniz, supra note 111.

[civ]Bureau of National Affairs, supra note 32.

[cv]Wang, supra note 112.

© 2014 Alisha Marie MaysNational Law Review, Volume IV, Number 126

About this Author

Alisha Mays, Florida International University College of Law

Alisha Mays is a 3L student at Florida International University College of Law who will graduate in May 2014. While at FIU Law, Ms. Mays has been a member of the FIU Law Review as well the Student Bar Association President (2013-2014) and Treasurer (2012-2013). Ms. Mays also serves as a Student Ambassador for the Admissions Office, speaking to and welcoming prospective students.  Ms. Mays is currently interning with the Ethics and Compliance department at Miami Children’s Hospital, and has previously worked with a FINRA arbitration law...

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