By Kyla J. Miller and Dawn Reddy Solowey
Seyfarth Synopsis: The Department of Justice filed a lawsuit on behalf of a nursing home employee alleging she was forced to receive a flu shot to keep her job when she could not provide a note from a clergy member in support of her request, causing emotional distress that made her fear “going to Hell.” U.S. v. Ozaukee Cty., No. 2:18-cv-00343, (E.D. Wis. March 6, 2018).
In a complaint against Ozaukee County in Wisconsin, the Department of Justice alleges the County engaged in religious-based discrimination in violation of Title VII when their nursing home required all health care workers to receive the flu vaccination unless they could provide a note from a clergy member.
The Employer’s Flu Shot Policy
Under the employer’s flu shot policy, employees could receive a religious exemption from the mandatory flu shot if they had a pastor, priest, or another member of the clergy submit a written note stating a clear reason and explanation for the exemption. If the note was accepted, the employee was required to wear a protective face mask throughout the flu season. If an employee refused the flu shot and did not provide the proper written statement, the employee would be considered to have “voluntarily resigned.”
Employee Feared “Going to Hell” if She Received the Shot But Could Not Provide A Clergy Note
The employee allegedly viewed her body as a “holy temple,” and believed the Bible forbids foreign substances including the flu shot in the body. During a meeting with her supervisor, the employee stated she was not affiliated with any church or formal religious organization at the time, and therefore could not provide a note from a pastor. Instead, she volunteered family and friends who would attest to her sincere religious belief. The supervisor told the employee it would be her last day if she could not provide a proper letter from a clergy member.
According to the complaint, the employee felt forced to receive the flu shot. Shortly after taking the shot, the employee “cried uncontrollably,” and experienced emotional distress including “withdrawing from work and her personal life, suffering from sleep problems, anxiety, and fear of ‘going to Hell’ because she had disobeyed the Bible by receiving the shot.”
It is not a “best practice” for an employer to require a clergy note to support a religious accommodation request, because an employee need only have a sincerely held religious belief–it is irrelevant whether they are a part of an organized religion. This is especially important in light of the EEOC’s aggressive approach to mandatory flu shots in recent years, targeting employers who terminate employees who refuse the shot based on a religious belief. According to Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office, “Title VII requires employers to make a real effort to provide reasonable religious accommodations to employees who notify the company that their sincerely held religious beliefs conflict with a company’s employment policy.”
There are several ways employers can minimize the risk of becoming a target for this type of litigation. Employers should narrow the applicability of their flu shot policies to those employees for whom the employer can justify the policy on health, safety or other legitimate business grounds. If an employee has a sincere religious belief that conflicts with a job requirement, the employer must provide a reasonable accommodation if it would not cause undue hardship. Employers should engage in the interactive process and properly assess what is a “reasonable accommodation” or “undue hardship” in the context of their workplace. It is wise for employers to consult with counsel with expertise in religious accommodation to make this case by case assessment.
For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.