User:BD2412/Vaccine law resources/Exemptions
Brown v. Children's Hosp. of Phila. (3rd Cir. 2020)
Brown filed a complaint alleging that the Children's Hospital of Philadelphia (CHOP) discriminated against her based on her religion, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, when it terminated her employment. Title VII of the 1964 Civil Rights Act requires employers to make reasonable accommodations for their employees' religious beliefs and practices, unless doing so would result in undue hardship to the employer." Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 224 (3d Cir. 2000). To establish a prima facie case for failure to accommodate, a plaintiff must show "(1) she has a sincere religious belief that conflicts with a job requirement; (2) she told the employer about the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement." Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 319 (3d Cir. 2008).
As we have recently explained, to state a claim under this statute, it is not sufficient merely to hold a "sincere opposition to vaccination"; rather, the individual must show that the "opposition to vaccination is a religious belief." Fallon v. Mercy Catholic Med. Ctr. of Se. Pa., 877 F.3d 487, 490 (3d Cir. 2017). In assessing whether beliefs are religious, we consider whether they "'address fundamental and ultimate questions having to do with deep and imponderable matters,' are 'comprehensive in nature,' and are accompanied by 'certain formal and external signs.'" Id. at 491 (quoting Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981)).
Nothing in Brown's second amended complaint suggests that her opposition to the flu vaccine was religious. At one point, she claimed that the vaccine was unnecessary for her because she scrupulously washed her hands, but any "concern that the flu vaccine may do more harm than good . . . is a medical belief, not a religious one." Id. at 492. Likewise, the advance directive that she provided is a medical document without any religious component. Nor do any of her other allegations tend to show that her belief was religious.
Skuse v. Pfizer, Inc., 457 N.J.Super. 539, 202 A.3d 1 (N.J. Super. App. Div. 2019)
Company-wide email with a link to an arbitration training module was insufficient notice that arbitration would be mandated (vaccination is the incidental basis for termination).
Chmura v. Monongalia Health Sys., CIVIL ACTION NO. 1:17CV222 (N.D. W.Va. 2019)
Medical exemption premised on one ingredient in a vaccine (in this case a latex allergy) was insufficient to exempt an employee from receiving a version of the same vaccine not containing that ingredient.
Jenkins v. Mercy Hosp. Rogers, No. 5:19-CV-05221 (W.D. Ark. March 17, 2020)
Ms. Jenkins filed a complaint on December 4, 2019, claiming Mercy engaged in unlawful religious discrimination under Title VII of the Civil Rights Act of 1964 and the Arkansas Civil Rights Act and wrongfully terminated her employment contrary to Arkansas state law. Mercy filed an answer on February 18, 2020, and its motion for judgment on the pleadings thereafter. For purposes of this motion, the facts are as follows: Mercy is a religious corporation, as defined by Title VII, that provides healthcare to patients in Northwest Arkansas. Mercy implemented a nondiscrimination policy (Doc. 2-1) and an influenza vaccination policy (Doc. 2-2) for its employees. The nondiscrimination policy, last approved June 1, 2018, commits Mercy "to a policy of non-discrimination on the basis of gender, race, color, religion, national origin, disability, or age, with regard to . . . membership on [Mercy's] medical staff, employees, . . . and all other persons with whom [Mercy has] dealings." (Doc. 2-1, p. 1). The influenza vaccination policy, last approved August 15, 2018, requires all Mercy employees to receive influenza vaccinations by November 15 of each year, subject to medical or religious exemption. (Doc. 2-2, pp. 1, 3). The influenza vaccination policy promises that Mercy will grant exemptions to the mandatory vaccination for "approved medical reasons or sincerely held religious beliefs,"2 and allows that religious exemptions may be granted if vaccination conflicts with the tenets of an employee's sincerely held religious belief, as certified by the employee's religious leader or someone else who can attest that the beliefs are sincerely held, and a religious exemption request form is timely submitted. (Doc. 2-2, p. 3). The policy does not set out the standards Mercy uses to evaluate a religious exemption request. If an exemption is granted, the employee will wear a mask from November 15 to March 31, with the possibility that that period may be enlarged on either end dependent upon the effect of influenza on the local community that season. (Doc. 2-2, pp. 3-4).
Ms. Jenkins worked as a physical therapist for Mercy beginning December 12, 2012. Ms. Jenkins was also a member of the Believers Fellowship congregation and she sincerely believed that requirements from various books of the Christian Old Testament—Leviticus and Deuteronomy are identified in the complaint—prohibit her from receiving an influenza vaccine. Ms. Jenkins submitted a religious exemption request to Mercy in September of 2018. On September 24, Mercy denied Ms. Jenkins's request without comment. On September 27, Ms. Jenkins submitted her internal appeal, and Mercy denied that appeal on November 15, again without comment. Ms. Jenkins did not receive an influenza vaccination, and her employment was terminated on that basis. During her termination meeting, her supervisor told her "The official religion that follows the Old Testament gets the flu shot, and the official religion that follows the New Testament also gets the flu shot."
The only reasonable inference that may be drawn from these facts is that Mercy discriminated against Ms. Jenkins on the basis of her religion when it refused to grant her a religious exemption under its influenza vaccination policy and then terminated her for not being vaccinated. Were Mercy a typical employer, the allegations in the complaint would set out a straightforward case of religious discrimination in violation of Title VII. That act makes it unlawful for employers "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 race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
Mercy is not a typical employer, however. The parties agree that Mercy is the sort of entity described in the religious organization exemption from Title VII, which states that prohibitions in Title VII against employment discrimination "shall not apply . . . to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." 42 U.S.C. § 2000e-1(a). As a result, they have presented the Court on this motion and in this litigation with a narrowly-defined controlling legal question regarding the scope of Title VII—can a religious corporation otherwise covered by the religious organization exemption in 42 U.S.C. § 2000e-1(a) waive coverage of that exemption and be subjected to liability for religious discrimination in employment?
Ms. Jenkins argues that because Mercy has propounded its own equal employment policy that it claims "meets or exceeds" the requirements of Title VII, and because that policy commits Mercy to nondiscrimination on religious grounds, Mercy has waived application of the religious organization exemption. Although Title VII's religious organization exemption may be procedurally forfeited—for example if a party fails to raise it during legal proceedings, see Garcia v. Salvation Army, 918 F.3d 997, 1008-09 (9th Cir. 2019)—if an entity continues to be a religious corporation, the religious organization exemption is not something that can be waived. See Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618, 625 (6th Cir. 2000); Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991). Rather, the religious organization exemption is a limitation on Title VII's reach. By prohibiting employment discrimination for enumerated reasons, Title VII alters the general rule in the United States that employment is at will, and in altering that rule Congress elected not to limit religious organizations from making employment decisions based on religion. As a religious corporation, Mercy remains free to discriminate against its employees on the basis of religion, whether or not Mercy has adopted an internal policy claiming it will not do so. That it has discriminated against Ms. Jenkins on the basis of religion in this case does not subject Mercy to Title VII liability. Mercy is entitled to judgment on the pleadings on this claim.
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, AFL–CIO–CLC v. Essentia Health, 280 F.Supp.3d 1161 (D. Minn. 2017)
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First, the 2017 Policy in no way mandates that employees be forcibly vaccinated. The USW frames the harm to its members as "forced vaccination," presuming that its members feel forced to receive vaccinations to preserve their jobs. The USW has presented nothing more than speculation that its members feel "forced" to receive vaccinations. One declarant had already received a medical exemption at the time of her declaration. The circumstances of the second declarant's statement are contested, as Essentia presents evidence that she received the vaccination prior to her declaration. And the third declarant merely stated that, despite a perceived medical risk, she was required to receive the vaccination or face termination. The record does not indicate whether the third declarant sought a medical exemption. The USW has not provided uncontested evidence of members who do not want the flu vaccination, feel coerced and, as a result, will choose to receive the vaccination if the 2017 Policy is not enjoined. The Court can only evaluate the evidence before it. Based on the evidence in the record, the USW has not established a risk that any particular member will be coerced into obtaining an unwanted vaccination.
Second, the USW has not established that an unwanted vaccination is an injury that "threaten[s] the integrity of the arbitration process itself." Bridgestone , 61 F.3d at 1354 (internal quotation marks omitted). In addition to the USW's failure to carry its evidentiary burden, the USW cites no legal authority supporting its position that its members face harm by voluntarily receiving vaccinations. The USW argues, correctly, that the Supreme Court of the United States has recognized a due process liberty interest in refusing unwanted medical treatment. Cruzan v. Dir., Mo. Dep't of Health , 497 U.S. 261, 278, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). But this liberty interest protects individuals from state action; it does not pertain to a labor dispute between two non-state actors. See DeShaney v. Winnebago Cty. Dep't of Soc. Servs. , 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) ("The [Due Process] Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security.").
The USW's argument that the flu vaccination constitutes a safety risk is similarly unavailing. In support of this contention, the USW cites the 1970 decision by the Western District of Pennsylvania enjoining a metal foundry's unilateral implementation of a policy reducing the number of workers staffed to operate an open hearth furnace.
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United Steelworkers of Am. AFL–CIO v. Blaw–Knox Foundry & Mill Mach., Inc. , 319 F.Supp. 636, 640–42 (W.D. Pa. 1970). This decision lacks precedential value. Moreover, Blaw–Knox is distinguishable from the circumstances here. In concluding that arbitration could not remedy the harm the union faced, the Blaw–Knox court relied on testimony that the crew reduction presented a risk of serious and irreparable physical injury because a reduced crew might not be able to safely contain molten steel seeping from the furnace. Id. The USW analogizes the 2017 Policy to the policy in Blaw–Knox and asserts that, much like potential exposure to molten steel, the flu vaccination itself is a safety risk that constitutes irreparable harm that cannot be reversed by arbitration. This comparison is not persuasive. The union in Blaw–Knox filed one grievance objecting to the unilateral implementation of the crew reduction policy and a second grievance objecting to the contents of the policy on safety grounds, asserting that the policy created an unsafe work environment. Id. at 639. Here, by contrast, the USW's grievance pertains to the implementation of the 2017 Policy, but the grievance does not directly challenge the contents of the 2017 Policy on safety grounds. Indeed, the majority of Essentia employees chose to receive a flu vaccination under previous policies, which undermines the USW's argument that the vaccination is inherently unsafe. Moreover, Essentia issues medical exemptions to employees who cannot safely receive the vaccination. Even if the USW had provided evidence that some of its members do not want the flu vaccination but will receive it to save their jobs, this would not establish that a reluctantly received (but voluntary) vaccination presents a safety risk or constitutes the type of harm that threatens the integrity of the arbitration process.
Third, a USW member who receives a vaccination may nonetheless benefit from the arbitration proceeding. Although a favorable arbitration award cannot remove a vaccination from a recipient's body, it can provide the USW a seat at the bargaining table prior to the implementation of future flu vaccination policies. Under both the 2015 Policy and the 2017 Policy, flu vaccinations are required annually. A favorable arbitration award might allow an employee to opt out of future flu vaccinations. Moreover, "[t]he fact that the arbitration decision will not be able to restore perfectly the status quo ante is not enough; the injury must be irreparable and must threaten the integrity of the arbitration process itself." Bridgestone , 61 F.3d at 1354 (emphasis added) (internal quotation marks omitted). The USW has alleged multiple harms. A favorable arbitration decision could remedy the majority of those harms, as addressed above. The arbitration process retains meaning because the process will delineate the USW's and Essentia's bargaining rights under the CBAs, determine whether the 2017 Policy was prematurely implemented, and, if the USW receives a favorable outcome, redress the USW and its members for harms as well as prevent those harms from recurring in future years.
The USW has not demonstrated that an injunction is necessary to prevent arbitration from being rendered a meaningless ritual. For this reason, the Norris–LaGuardia Act applies, precluding injunctive relief in this instance. The Court, therefore, declines to analyze the equitable factors governing preliminary injunctions. See Dataphase Sys., Inc. v. C L Sys., Inc. , 640 F.2d 109, 114 (8th Cir. 1981). The USW's application for a preliminary injunction is denied.
Massachusetts selected case law
Morin v. MGH
Morin v. MGH Institute of Health Professionals and Partners Healthcare System, Inc. (Mass. Super.), 15 Mass. Law Rptr. 417 (2002)
G.L. c. 76 §15C requires students in a health science program who come in contact with patients to be immunized against various communicable diseases. Here, the court construes the language in that statute that exempts students on the basis of religious beliefs.
Robinson v. Children's Hospital Boston
Robinson v. Children's Hospital Boston, U.S. Dist. Ct., Mass., April 5, 2016.
A hospital employee was not entitled to a religious exemption from a requirement for all employees who worked with patients to get a flu shot. The court held that the hospital had given the employee reasonable accommodation, and that the exemption would cause an undue hardship for the hospital.
Holly's Law
"The Antibody Titer Law (Holly's Law) (NJSA 26:2N-8-11), passed on January 14, 2004... allows parents to seek testing to determine a child’s immunity to measles, mumps, and rubella, before receiving the second dose of the vaccine".[1]