New EEOC lawsuit highlights the discrimination risks of mandatory flu shots

injection-519388_640Last week, the EEOC announced (here) that it had filed this lawsuit against a Massachusetts employer, in which it alleges that the company violated federal law when it refused to effectively accommodate an employee’s religious beliefs.

It’s a wicked pissah!

Religious accommodations for flu shots.

Here’s a summary of this new civil action from the EEOC press release:

According to EEOC’s complaint, Baystate Medical Center has, since September 2015, required all employees to receive an annual flu vaccination. An employee may request an exemption to the vaccine requirement based on religious beliefs, but the employer requires those workers to wear a mask while on the job. EEOC alleged that Stephanie Clarke, a recruiter in Baystate’s human resources department, initially wore the mask when she declined the flu shot because of her religious beliefs. When job applicants complained to Clarke that they could not understand her when she spoke to them while wearing the mask, Clarke removed the mask in order to be heard, EEOC said. According to the complaint, Clarke then asked her employer to work with her to find an alternative accommodation that would permit her to honor her religious beliefs while effectively performing her job. Instead, Baystate placed Clarke on indefinite, unpaid leave. When Clarke complained and sought an alternative accommodation to the policy, Baystate terminated her, EEOC said.

Undue hardship?

Title VII of the Civil Rights Act of 1964 requires an employer to reasonably accommodate an employee’s religious beliefs or practices. Well, unless it would be an undue hardship on the employer.

The undue-hardship bar for an employer is set very low. That is, the employer must demonstrate that the accommodation would require more than de minimis cost. In its compliance manual, the EEOC acknowledges that workplace safety is a factor that can create undue hardship when considering a religious accommodation.

So, wouldn’t not getting a flu shot impede workplace safety? Sure enough, in this 2012 Informal Discussion Letter, the EEOC opined that “the employer may deny the accommodation request [for a mandatory flu shot] if it would pose an undue hardship in the circumstances, or may impose other infection control measures on those excused from vaccination, such as a mask requirement, if not done for retaliatory or discriminatory reasons.” (my emphasis)

In this particular case; however, the EEOC does not allege that the mask requirement was discriminatory or retaliatory. Rather, the EEOC plays doctor by alleging that “because Clarke’s job did not require her to have patient contact, it would not have been an undue hardship for Defendant to exempt Clarke from the flu vaccine requirement, or to permit her to remove the mask while speaking.” Additionally, the EEOC avers that the employer further violated Title VII by placing the employee on indefinite, unpaid leave — rather than discussing alternatives to the mask (i.e., a failure to accommodate). [Of course, this presupposes that there was another reasonable alternative to the shot or the mask].

The EEOC may have an uphill battle ahead of it.