Hospital employee not entitled to religious exemption from flu vaccine requirement

|The Volokh Conspiracy |

Title VII of the Civil Rights Act was amended in 1972 to require employers—public and private—to reasonably accommodate employees' religious objections to generally applicable work requirements, so long as the accommodation wouldn't involve "undue hardship" for the employer or for others. And the undue hardship bar isn't very high; whenever the accommodation "would impose more than a de minimis cost on the employer," the employer doesn't have to provide it.

In last week's Robinson v. Children's Hospital Boston (D. Mass. Apr. 5, 2016), Leontine Robinson—a hospital employee at Children's Hospital Boston who "was typically one of the first Hospital employees to interact with patients and their family members when they arrived in the emergency department" and who thus had to be in "close physical proximity" to patients—sought an exemption from the hospital's requirement that patient-care employees get flu vaccines. Robinson is a follower of the Nation of Islam and says she opposes the flu vaccine on religious grounds; the court assumed that this indeed reflects her sincere religious belief.

But the court concluded that the hospital reasonably accommodated Robinson by (among other things) trying to help her find a non-patient-care position. And the court concluded that the accommodation Robinson sought—an exemption from the immunization requirement for patient-care positions—would have imposed an undue hardship on the employer (paragraph break added):

Health care employees are at high risk for influenza exposure and can be source of the fatal disease because of their job. Numerous medical organizations support mandatory influenza vaccination for health care workers. The medical evidence in this record demonstrates that the single most effective way to prevent the transmission of influenza is vaccination. In the same vein, the Department requires all licensed state hospitals to provide the influenza vaccine to their employees at no cost and to report their compliance.

[Footnote: The Court is aware that [the Massachusetts regulation] provides that a hospital "shall not require an employee to receive an influenza vaccine … if: (a) the vaccine is medically contraindicated, which means that administration of influenza vaccine to that individual would likely be detrimental to the individual's health; (b) vaccination is against the individual's religious beliefs; or (c) the individual declines the vaccine." Robinson does not assert a claim based on [the regulation] and the regulation does not affect the Court's analysis of the Hospital's Title VII liability. As discussed above, Title VII protects an employee from religious discrimination but permits an employer's policy if the employer offers a reasonable accommodation or demonstrates that such accommodation would create an undue hardship.]

Here, in light of the state's requirements and the Hospital's understanding of the medical consensus on influenza vaccination, the Hospital decided to achieve the safest possible environment for its patients. With the exception of those with medical issues, the Hospital sought as close to total compliance as possible by requiring all persons who work in or access patient-care areas to be vaccinated. Robinson worked in a patient-care area. She worked closely with patients, regularly sitting near or touching them as she worked on their admission to the Hospital.

Had the Hospital permitted her to forgo the vaccine but keep her patient-care job, the Hospital could have put the health of vulnerable patients at risk. To allow Robinson to avoid relatively more vulnerable patients and not others would have been unworkable as well. It would have forced the Hospital to arrange its work flow around uncertain factors. On this record, accommodating Robinson's desire to be vaccine-free in her role would have been an undue hardship because it would have imposed more than a de minimis cost.

Seems quite right to me. One can argue for or against the Title VII religious accommodation requirement, but that requirement deliberately aims to require only low-cost accommodations (viewing "cost" broadly, to include health dangers as well as financial costs), and courts have generally read it that way. That has been true for Christian religious accommodation claims; it's likewise true for traditionalist Muslim claims as well as for Nation of Islam claims such as this one.

UPDATE: I'm afraid I erred in the original version of the story, where I called Robinson a nurse; she worked in the emergency room processing incoming patients, and had to be in close proximity to them (for instance, to put identification bracelets on them), but she wasn't a nurse. Very sorry for the error; it turns out not to affect the legal analysis, but it was sloppy on my part—my apologies, and thanks to reader mattbc for the correction.