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Influenza Mandates and Religious Accommodation: Avoiding Legal Pitfalls

Published online by Cambridge University Press:  01 January 2021

Dorit Rubinstein Reiss  and
V.B. Dubal
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Abstract

Influenza mandates in health care institutions are recommended by professional associations as an effective way to prevent the contraction of influenza by patients from health care workers. Health care institutions with such mandates must operate within civil rights frameworks. A recent set of cases against health care institutions with influenza mandates reveals the liabilities posed by federal law that protects employees from religious discrimination. This article examines this legal framework and draws important lessons from this litigation for health care institutions. We argue counterintuitively that providing religious exemptions from influenza mandates may expose health care institutions to more liability than not providing a formal exemption.

Type
Independent Articles
Information
Journal of Law, Medicine & Ethics , Volume 46 , Issue 3: The Medicalization of Poverty; Perspectives of Alzheimer's Disease: Ethical, Legal, and Social Issues , Fall 2018 , pp. 756 - 762
Copyright
Copyright © American Society of Law, Medicine and Ethics 2018

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References

Ahmed, F. et al., “Effect of Influenza Vaccination of Health-care Personnel on Morbidity and Mortality Among Patients: Systematic Review and Grading of Evidence,” Clinical Infectious Diseases 58, no. 1 (2014): 50-57; Amodio, E. et al., “Can Influenza Vaccination Coverage Among Healthcare Workers Influence the Risk of Nosocomial Influenza-Like Illness in Hospitalized Patients?” Journal of Hospital Infection 86, no. 14 (2014): 182-187.Google Scholar
For treatment of this issue, see: Randall, L.H., Curran, E.A., and Omer, S.B., “Legal Considerations Surrounding Mandatory Influenza Vaccination for Healthcare Workers in the United States,” Vaccine 31 (2013): 1771-1776; Field, R.I., “Mandatory Vaccination of Healthcare Workers: Whose Rights Should Come First?” Pharmacy and Therapeutics 34, no. 11 (2009): 615-618; Najera, R.F. and Reiss, D.R., “First Do No Harm: Protecting Patients Through Immunizing Health Care Workers,” Health Matrix 26, no. 1 (2016): 363-402.Google Scholar
Centers for Disease Control and Prevention, “Immunization of Health-Care Personnel: Recommendations of the Advisory Committee on Immunization Practices,” (ACIP) Morbidity and Mortality Weekly Report 60, no. 7 (RR07) (2011).Google Scholar
Wang, T.L., Jing, L., and Bocchini, J.A. Jr., “Mandatory Influenza Vaccination for All Healthcare Personnel: A Review on Justification, Implementation and Effectiveness,” Current Opinion in Pediatrics 29, no. 5 (2017): 606-615.Google Scholar
Black, C.L. et al., “Influenza Vaccination Coverage Among Health Care Personnel — United States, 2015–16 Influenza Season,” Morbidity and Mortality Weekly Report 65, no. 38 (2016):1026-1031.Google Scholar
See Field, supra note 2.Google Scholar
Wang et al., supra note 4, at 609.Google Scholar
Immunization Action Coalition, Influenza Vaccination Honor Roll, available at <http://www.immunize.org/honor-roll/influenza-mandates> (last visited July 20, 2018).+(last+visited+July+20,+2018).>Google Scholar
Ottenberg, A.L. et al., “Vaccinating Health Care Workers Against Influenza: The Ethical and Legal Rationale for a Mandate,” American Journal of Public Health 101, no. 2 (2011): 212-216; Caplan, A.L., “Time to Mandate Influenza Vaccination in Health-Care Workers,” The Lancet 378, no. 9788 (2011): 310-311; Feemster, K.A. et al., “Employee Designation and Health Care Worker Support of an Influenza Vaccine Mandate at a Large Pediatric Tertiary Care Hospital,” Vaccine 29, no. 9 (2011): 1762-1769.CrossRefGoogle Scholar
See Emp't Div. v. Smith, 494 U.S. 872, 888-90 (1990); see also Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2760-62 (2014).Google Scholar
Calandrillo, S.P., “Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?” University of Michigan Journal of Law Reform 37, no. 2 (2004): 353-440; Reiss, D.R., “Thou Shalt Not Take the Name of the Lord Thy God in Vain: Use and Abuse of Religious Exemptions from School Immunization Requirements,” Hastings Law Journal 65, no. 6 (2014): 1551-1602.Google Scholar
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).Google Scholar
Wang, supra note 4, at 607-608.Google Scholar
See Najera and Reiss, supra note 2.Google Scholar
29 C.F.R. § 1605.1 (2018).Google Scholar
Chenzira v. Cincinnati Children's Hosp. Med. Ctr., No. 1:11-CV-00917, 2012 WL 6721098, at *4 (S.D. Ohio Dec. 27, 2012). See Opel, D.J., Sonne, J.A., and Mello, M.M., “Vaccination without Litigation — Addressing Religious Objections to Hospital Influenza-Vaccination Mandates,” N. Engl. J. Med. 378 (2018): 785-788.Google Scholar
United States v. Seeger, 380 U.S. 163, 185 (1965).Google Scholar
Equal Employment Opportunity Commission, Directives Transmittal No. 915.003: EEOC Compliance Manual (Jul. 22, 2008), available at <https://www.eeoc.gov/policy/docs/religion.html#_Toc203359488> (last visited July 20, 2018).+(last+visited+July+20,+2018).>Google Scholar
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 461 U.S. 837, 865 (1983).Google Scholar
U.S. Equal Employment Opportunity Commission, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, available at <https://www.eeoc.gov/facts/pandemic_flu.html> (last visited July 20, 2018).+(last+visited+July+20,+2018).>Google Scholar
Id., § III(B), question 13.Google Scholar
Wang, supra note 4, at 607-608.Google Scholar
Inazu, J.D., “The Four Freedoms and the Future of Religious Liberty,” North Carolina Law Review 92, no. 3 (2014): 787-853, especially 797-804.Google Scholar
See Caplan and Ottenberg et al., supra note 9.Google Scholar
For an analysis, see Nathanson, D., “Herd Protection v. Vaccine Abstention, Potential Conflict Between School Vaccine Requirements and State Religious Freedom Restoration Acts,” American Journal of Law & Medicine 42, no. 2 & 3 (2016): 621-641.Google Scholar
Opel, Sonne, and Mello, supra note 16, appear to hold that view.Google Scholar
EEOC v. Saint Vincent Health Ctr., No. 16-CV-00234, 2016 WL 7438696 (W.D. Pa. Dec. 23, 2016) (settled); EEOC v. Mission Hosp., No. 16-CV-00118, 2016 WL 1697385 (W.D. N.C. Apr. 28, 2016) (settled); EEOC v. Baystate Med. Ctr., No. 16-CV-030086, 2016 WL 3098271 (D. Mass. June 2, 2016) (still open).Google Scholar
Opel, Sonne, and Mello, supra note 16, provide an overview of a larger number of cases, going back further in time. Their conclusions are not in tension with ours, though they do not seem to support not providing a religious exemption.Google Scholar
EEOC v. Memorial Healthcare, No. 2:18-cv-10523 (E.D. Mich. filed Feb. 13, 2018) (brought by the EEOC) [hereinafter Memorial]; United States v. Ozakee Cty., No. 2:18-cv-00343-DEJ (E.D. Wisc. filed Mar. 6, 2018). Both cases are ongoing.Google Scholar
Robinson v. Children's Hosp. Bos., No. 14-10263-DJC Civ., 2016 WL 1337255 (D. Mass. Apr. 5, 2016).Google Scholar
Seeger, 380 U.S. at 185; see also Bushouse v. Local Union 2209, UAW, 164 F. Supp. 2d 1066 (N.D. Ind. 2001).Google Scholar
EEOC v. Saint Vincent Health Ctr., No. 16-CV-00234, 2016 WL 7438696 (W.D. Pa. Dec. 23, 2016).Google Scholar
Ozakee Cty., No. 2:18-cv-00343-DE.Google Scholar
Dalli v. Bd. of Educ., 358 Mass. 753, 267 N.E.2d 219 (1971). See also Reiss, supra note 11.Google Scholar
Opel, Sonne, and Mello, supra note 16.Google Scholar
Saint Vincent Health Ctr., 2016 WL 7438696.Google Scholar
Berg v. Glen Cove City Sch. Dist., 853 F. Supp. 651 (E.D.N.Y. 1994).Google Scholar
Health care institutions choosing that route may want to be on the lookout for internet sites offering pre-prepared documents to submit for the purpose, the use of which may suggest lack of sincerity.Google Scholar
877 F.3d 487, 490-491 (3d Cir. 2017).Google Scholar
662 F.2d 1025, 1032 (3d. Cir. 1981).Google Scholar
Id.Google Scholar
Fallon, 877 F.3d at 490-491.Google Scholar
EEOC v. Mission Hosp., No. 16-CV-00118, 2018 WL 401505 (W.D. N.C. Jan. 12, 2018).Google Scholar
Opel, Sonne, and Mellow, supra note 16.Google Scholar
See Memorial, supra note 19.Google Scholar
Najera and Reiss, supra note 2, at 391-394.Google Scholar
On January 18, 2018 the Department of Health and Human Services announced the creation of a New Conscience and Religious Freedom Division in its Office of Civil Rights (available at <https://www.hhs.gov/about/news/2018/01/18/hhs-ocr-announces-new-conscience-and-religious-freedom-division.html> (last visited July 20, 2018); see also Glasser, N.M. and Smith, K., “A Shot in the Arm for Employer Vaccine Requirements for Health Care Workers,” National Law Review, January 29, 2018. The Division's first proposed rulemaking makes it clear that its goal is to tighten protections for workers seeking religious accommodation (Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, 83 Fed. Reg. 3880 (proposed Jan. 26, 2018) (to be codified at 45 C.F.R. pt. 88), available at <https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-01226.pdf> (last visited July 20, 2018)). It is too early to know what, exactly, the department would do, and whether it would affect the situation in relation to influenza mandates. We live this for future examination, both because this is outside the scope of the paper and because it is not yet clear whether it would affect the legal situation, and in which ways. (last visited July 20, 2018)). It is too early to know what, exactly, the department would do, and whether it would affect the situation in relation to influenza mandates. We live this for future examination, both because this is outside the scope of the paper and because it is not yet clear whether it would affect the legal situation, and in which ways.' href=https://scholar.google.com/scholar?q=On+January+18,+2018+the+Department+of+Health+and+Human+Services+announced+the+creation+of+a+New+Conscience+and+Religious+Freedom+Division+in+its+Office+of+Civil+Rights+(available+at++(last+visited+July+20,+2018);+see+also+Glasser,+N.M.+and+Smith,+K.,+“A+Shot+in+the+Arm+for+Employer+Vaccine+Requirements+for+Health+Care+Workers,”+National+Law+Review,+January+29,+2018.+The+Division's+first+proposed+rulemaking+makes+it+clear+that+its+goal+is+to+tighten+protections+for+workers+seeking+religious+accommodation+(Protecting+Statutory+Conscience+Rights+in+Health+Care;+Delegations+of+Authority,+83+Fed.+Reg.+3880+(proposed+Jan.+26,+2018)+(to+be+codified+at+45+C.F.R.+pt.+88),+available+at++(last+visited+July+20,+2018)).+It+is+too+early+to+know+what,+exactly,+the+department+would+do,+and+whether+it+would+affect+the+situation+in+relation+to+influenza+mandates.+We+live+this+for+future+examination,+both+because+this+is+outside+the+scope+of+the+paper+and+because+it+is+not+yet+clear+whether+it+would+affect+the+legal+situation,+and+in+which+ways.>Google Scholar