Winter brings the onset of flu season. According to the Centers for Disease Control (CDC), the flu, short for influenza, is a contagious respiratory illness that effects on average 8% of the population every flu season, or between 9.2 million and 35.6 million flu-related illnesses each year in the United States. The best way to prevent the flu is by getting a flu vaccine. Most employers not in the healthcare field do not require employees to receive compulsory vaccines of any kind, including those for the flu. However, because healthcare employees are likely to be in contact with patients with compromised immune systems, healthcare providers often require their employees to submit to mandatory vaccinations, including forced flu shots. Refusing to do so has cost many healthcare workers their jobs. For example, in November 2017, Minnesota-based Essentia Health fired 69 employees who refused to get the flu vaccine, and in 2012, Cincinnati-based TriHealth fired 150 employees for not getting the flu shot

Terminating an employee when they refuse a flu shot on religious grounds (or because of illness or disability) may give rise to a claim of unlawful discrimination in violation of New Jersey’s Law Against Discrimination (LAD). The LAD prohibits employers from “discharg[ing]” or “discriminat[ing] against [an employee] in compensation or in terms, conditions or privileges of employment” due to, among other reasons, the employee’s religion. N.J.S.A. 10:5-12(a); see also El-Sioufi v. St. Peter’s Univ. Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005). Under LAD an employer may accommodate sincerely held religious practices that may conflict with workplace rules, so long as the religious practices does not impose an undue hardship. Id.

Few reported court cases in New Jersey have been found addressing the refusal on nonreligious secular grounds to comply with a company’s compulsory flu vaccine policy. One case found is Valent v. Board of Review, Dept. of Labor, 436 N.J. Super. 41 (App. Div. 2014), where nurse Valent, an employee of Hackettstown Community Hospital (“HCH”), refused to take a flu vaccine for purely secular and personal reasons. Valent did not allege a medical or religious reason, which were the only exemptions permitted under HCH’s flu vaccination directive.  Id. at 44. Despite Valent agreeing to wear a mask during flu season, HCH proceeded to terminate her employment based on Valent’s refusal to take a flu shot. Thereafter, Valent applied for state unemployment insurance benefits, and HCH contested her application claiming Valent’s refusal to take a flu shot was an act of misconduct disqualifying her from receiving full benefits. The Appellate Division disagreed with HCH by concluding that Valent was not disqualified from unemployment benefits because she did not commit any misconduct under the law.  The appellate court held that Valent was within her rights to refuse to be vaccinated on purely secular reasons and was not required to show she qualified for a religion-based exemption.  Id. at 48.

New Jersey may soon require mandatory flu vaccines for employees in health care facilities. This is because on December 12, 2019, a new bill sponsored by State Senator Joseph F. Vitale was passed by the New Jersey Senate (S1003) requiring health care facilities (including hospitals, nursing homes, or home health care agencies) to provide (not just offer) all employees flu vaccinations by no later than December 31st of every year, as well as education to employees about control measures, transmission  and impact of the flu. Section (f) of S1003 prevents an employer from firing a healthcare employee for refusing a flu vaccine by stating that, “a health care facility shall not discharge or reduce the pay of a health care worker who declines to receive an influenza vaccination.”  Relatedly, the proposed law further provides that if employees do not receive a flu vaccine, the employer can take reasonable measures to protect patients, including the relocation or change of assignments of the unvaccinated employee during flu season.

If you are an employee of a healthcare facility and you feel you have been wrongfully terminated for refusing to take a flu shot, call Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help.. Our attorneys are well experienced in handling discrimination, failure to accommodate and wrongful termination claims. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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