What duty do healthcare employers have to accommodate employees with religious objections to influenza vaccines? My colleagues Dorit Reiss and Veena Dubal, recognized experts (respectively) in vaccine law and employment discrimination, have teamed up to provide an invaluable primer on the law governing this question. Their bottom-line answer is, “not much.”
Professor Reiss and Professor Dubal’s article “Influenza Mandates and Religious Accommodations: Avoiding Legal Pitfalls,” published this fall in the Journal of Law, Medicine, and Ethics, canvasses the relevant regulatory guidance and case law and concludes that employers may not have any obligation under federal law to accommodate religious objections to mandated influenza vaccines for healthcare workers.
Although federal law requires employers to make reasonable accommodations for employees’ religious beliefs, courts have held that this law requires only accommodations that impose minimal costs. As Professor Reiss and Professor Dubal explain, alternatives to vaccination (most notably face masks) are not nearly as effective in preventing influenza’s spread. Accordingly, “[t]he potential costs of preventable influenza cases,” which “include missed workdays and sick or dead patients,” will often go well beyond what a reasonable religious accommodation would require.
In fact, Professor Reiss and Professor Dubal demonstrate that providing a religious accommodation may only increase an employer’s liability. For one thing, adopting an accommodation policy may invite litigation over whether the policy is reasonable. What is more, providing an accommodation to some employees but not others may invite scrutiny from regulators and others regarding whether the employer’s distinctions between employees are lawful.
With this winter’s flu season upon us, healthcare employers will find this analysis by two leading experts in the field an invaluable guide to their legal options. Beyond its immediate practical utility, moreover, the article provides a fascinating snapshot of our legal system’s ongoing effort to balance religious freedom with other social goals. Those interested in vaccines, employment law, or religious freedom should not miss this important contribution.