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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Mandatory Flu Shots

Mandatory vaccination programs have become increasingly common, particularly in the health care sector. In 2012, Colorado’s Board of Health voted that all hospitals, nursing homes and health care facilities across the state must achieve at least a ninety percent (90%) flu vaccination rate for workers by 2015. Employees in other states have been fired for refusing to comply with vaccination requirements; which may soon be likely in Colorado.

If an employer requires you to get a vaccination, there appear to be three (3) main possible exceptions to the requirement: 1) refusal for religious reasons; 2) refusal for medical reasons such as allergies to vaccination additives, and, 3) refusal due to a disability which requires an accommodation. A health care facility may also allow exceptions for people who are not in direct patient care. Some hospitals allow the employee to wear a mask or other accommodation, such as a leave of absence during flu season. Further if the employee has a contract or collective bargaining agreement with your employer, the agreement may bar the vaccination requirements.

Ms. Chenzira was employed as a Customer Service Representative with Cincinnati Children’s Hospital Medical Center for more than a decade. On December 3, 2010, she was terminated for refusing to be vaccinated for the flu. Ms. Chenzira contends that her discharge violated her religious and philosophical convictions because she is a vegan, a person who does not ingest animal or animal-by-products. Ms. Chenzira stated that previous to 2010, the hospital accommodated her request to forgo the vaccine. Ms. Chenzira filed a lawsuit alleging religious discrimination and wrongful termination. Ms. Chenzira stated that her practice constitutes a moral and ethical belief which is sincerely held with the strength of traditional religious views. The hospital filed a motion to dismiss arguing that veganism does not qualify as a religion, but rather is no more than a dietary preference or social philosophy. The Court refused to dismiss stating that veganism could be protected by laws against religious discrimination. This particular case settled before trial and without a determination of the issues by the Court.

Another employee in the medical field asked the Equal Employment Opportunity Commission (“EEOC”) for guidance over his desire to be excused from getting a mandatory vaccination required by his employer. His employer’s policy required a clergy verification of the employee’s religious beliefs before providing an accommodation. The EEOC stated that, in general, an employer may be required to excuse an individual from a mandatory vaccination policy as a requested religious accommodation under Title VII of the Civil Rights Act or as a disability accommodation under the Americans with Disabilities Act, if doing so would not pose an undue hardship on the employer. If a religious accommodation is requested, the employer is allowed to obtain supporting information. The information does not need to come from a church official or member, but could be provided by others who are aware of the employee’s religious beliefs or practice. When an employer makes a reasonable inquiry for such supporting information, the employee must cooperate or he/she may not be entitled to an accommodation. Further, an employer may deny the request if it would pose an undue hardship under the circumstances, or impose other infection control measures such as requiring the employee to wear a mask.

If you have a question about a mandatory vaccinations contact us at www.BryanKuhnLaw.com/ to discuss your legal rights.

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