Forced vaccination (adult)

[ChristaN]

I work as an educator at a hospital. I have no patient contact other than teaching a weekly class for parents whose babies are in our NICU. My employer has always offered flu vaccines for all employees free of charge and has taken to making us sign declination forms if we choose not the get them for the past few years. I have always signed the declination form and the reason I have given has been "personal" or due to the fact that I am a 22 yr. vegan and the vaccine is grown on chicken eggs.

I was just informed that our health system has a new policy that mandates all employes get the vaccine this year as a condition of continued employment. The only possible exemptions are medical (signed by a licensed medical professional) if you've had prior severe adverse reactions or religious (signed by your religious cleric stating that you are an adherent to a religion that forbids vaccines). To make sure that we don't all go and get ordained on the internet , they've limited the religious clerics to ones they approve.

I am not getting this vaccine. Given that they have effectively changed the terms of my employment 5+ yrs after I accepted the position, can they require this? Do I have any recourse or do I just need to quit?

[Otto]

Originally Posted by ChristaN

I am not getting this vaccine. Given that they have effectively changed the terms of my employment 5+ yrs after I accepted the position, can they require this? Do I have any recourse or do I just need to quit?

Assuming you're an employee at will (as most nonunion workers are), the only real angle would seem to be a Title VII claim of religious discrimination, but the previous refusal history probably wouldn't make it any easier to show that such a claim wasn't pretextual. A restrictive list of "approved clerics" is clearly out of bounds, though, so you've got the thin edge of some wedge.

Whatever you do, don't quit. Unless they fire you, you've got next to nothing (and no unemployment benefits, to be certain).

[ChristaN]

Originally Posted by Otto

Whatever you do, don't quit. Unless they fire you, you've got next to nothing (and no unemployment benefits, to be certain).

It is notoriously difficult to get unemployment benefits where I live in Northern Colorado anyway. Dh was let go from a truck driving job due to too many vehicle overweight tickets which were due to his dispatcher loading the truck too heavy. He was just the driver. He was denied unemployment and contested it. The company won.

It technically isn't religious discrimination in that vegan isn't a religion per se.

[laohaire]

No, vegan isn't a religion, but their requirements for religious waivers are unconstitutional. They cannot ask you to state your religion, much less get a signature from a preapproved list of clerics. It's religious discrimination on several levels - first, to presuppose that the only valid religions are the ones represented by the preapproved clerics. Next, to presuppose that you can't have your own valid religious views (and therefore, that you can't be, say, Catholic and legitimately religiously opposed to the practice of vaccinations). Next, to invade your privacy by requiring you to declare your religion.

Unfortunately, I have no idea what to suggest. If philosophical exemptions are not recognized in your state (they aren't in mine), then your choices as I see them are:

- To simply wait and see, and refuse, period. See if they fire you. They may not want to, as it's a pain to replace established, good employees. On the other hand, they might fire you in a New York minute.
- To talk to a lawyer.
- To declare a religious objection. Consider if the practice of vaccination might actually be against your religious views. Of course, it won't be as simple as that, as you will have to fight their religiously discriminatory protocols. The case is technically a good one, though yours would not be so good as you have a history of stating non-religious reasons on prior exemptions ("personal" might be ok, but mentioning the vegan objection probably killed your potential case), and you probably can't prove a history of certain beliefs. Sigh.

Going through these, assuming you don't have a pile of money sitting around for a lawyer, I think I would stick with option 1 - wait and see. Well, brush up your resume and see. I literally cannot think of any other options (other than, of course, to submit).

[Otto]

Originally Posted by ChristaN

It technically isn't religious discrimination in that vegan isn't a religion per se.

It just might be close enough to prevail under Title VII. The real trick would be pointing out to them in advance that the policy as presented is already on the wrong side of the law and convincing them that they probably don't want to find themselves testing out what's left of it in court. You'd need a few hours from a good employment lawyer, of course.

[Emmeline II]

Frazee V. Illinois is a US Supreme Court ruling on employees' religious practice and employment; there is also Title VII.

To whom it may concern;



(I) ______________________ are exercising (our/my) rights under the US Constitution to receive Religious Exemption from Vaccination, ALL injections, prophylaxis, & testing due to my genuine and sincere religious beliefs which are contrary to the practices herein required.

The U.S. Supreme Court held in Frazee V. Illinois Dept. of Security, 489 U.S. 829, that a religious belief is subject to protection even though no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not advocate or require such belief. This ruling is also reflected in Title VII of the Civil Rights Act of 1964 as amended Nov. 1, 1980; Part 1605.1-Guidelines on Discrimination Because of Religion.


Sincerely,

[DisplacedYooper]

Originally Posted by laohaire

("personal" might be ok, but mentioning the vegan objection probably killed your potential case), and you probably can't prove a history of certain beliefs. Sigh.

But plenty of people eat particular diets due to their religious beliefs. It could just be the that OP didn't want to divulge her objections as religious until she was forced to....

Edited to add: The root cause of both the veganism and the non-vaccination would be religious, she was just previously using veganism as a more mainstream acceptable excuse. Also, religious beliefs can change at any time.

[Otto]

Originally Posted by laohaire

They cannot ask you to state your religion....

They almost certainly may, or at least to demand that the beliefs be spelled out in enough detail to evaluate whether they are genuinely religious from a legal standpoint. This isn't the school-waivers game.

[laohaire]

Originally Posted by DisplacedYooper

But plenty of people eat particular diets due to their religious beliefs. It could just be the that OP didn't want to divulge her objections as religious until she was forced to....

Edited to add: The root cause of both the veganism and the non-vaccination would be religious, she was just previously using veganism as a more mainstream acceptable excuse. Also, religious beliefs can change at any time.

I agree. I just think that it won't do well in court. They have some really odd views on what constitutes a religious objection - for example, apparently Catholics can't even object to just the vaccines using aborted fetal cells. If that's not a religious objection, I don't know what is.

A judge will hear "vegan" and immediately go "oh, this is just one of those hippie dippy people masquarading a philosophical objection that we don't support as a religious objection. Just like those anti-war hippies who were too scared to fight." (Ok, maybe the last wasn't necessary , but just quoting the likely mindset of the judge).

[laohaire]

Originally Posted by Otto

They almost certainly may, or at least to demand that the beliefs be spelled out in enough detail to evaluate whether they are genuinely religious from a legal standpoint. This isn't the school-waivers game.

Hmm, you're right- they can ASK you to state your religion. But they are not just doing that; they are requiring that the OP get a signature from a preapproved list of clerics. The OP has a right to simply state the nature of her religious beliefs as they apply to this issue - and that's it.

[The4OfUs]

NY State Healthcare workers did something to get an injunction to stop forced H1N1 vaccination......try a Google search on that to see what they did. and Good luck!

[Otto]

Originally Posted by laohaire

Hmm, you're right- they can ASK you to state your religion. But they are not just doing that; they are requiring that the OP get a signature from a preapproved list of clerics.

Yes, and I pointed out in my first reply that this is clearly out of bounds, providing clear preemptive legal leverage.

[Otto]

Originally Posted by Emmeline II

Frazee V. Illinois is a US Supreme Court ruling on employees' religious practice and employment; there is also Title VII.

Frazee was a case on unemployment benefits. It has zero bearing unless the OP actually gets fired.

[Lady Lilya]

If you do end up deciding to submit...

I saw online somewhere an article about how to minimize the effects of vaccines on your body. I can't recall all the detail, but it included icing the spot of injection for a while, as well as other steps. I could probably find it again if you needed it.

[Otto]

Originally Posted by The4OfUs

NY State Healthcare workers did something to get an injunction to stop forced H1N1 vaccination......try a Google search on that to see what they did.

They got a TRO, but it never came to a hearing on the merits. (Of course, having a union as plaintiff in two of the cases never hurts.) Still, New York was essentially a case of a state mandate, and only addressed H1N1.

[CrazyCatLady]

I just wanted to wish you luck OP. I have no great advice. I forged a vax card to get through nursing school. Then once I started working as a nurse I was non-stop bombarded with flu shot requirements, MMR, etc. It became more than I was willing to deal with and it seemed like it was only going to get worse in the future.

I can't believe you even have to go through this considering you only teach a class there. I hope you can get something figured out and be able to keep your job.

[just_lily]

I am certainly not suggesting that this would be ethical, but has anyone every actually tried contacting a clergy-person for a religion they do not belong to, in order to get a religious exemption? If they gave you a list of clerics.... perhaps check it out?

If I lived somewhere that only allowed religious exemptions I would give serious consideration to converting.

[Pirogi]

Originally Posted by Otto

Frazee was a case on unemployment benefits. It has zero bearing unless the OP actually gets fired.

I have heard this on other threads also. I guess IMO, and IANAL, is that in the absence of actual court decisions relating to attempting to force an employee to vax unless she belongs to a religious group on an "approved" list, then Frazee and other cases referenced therein certainly are relevant. If this had already been heard in a court of law, and ruled to be unconstitutional or against public law, then it would be an easy open and shut case. Since it hasn't (to my knowledge), then a judge would look to other cases to help "define" what a religious belief is, and whether the employer in this case is violating any law. Cases relating to workplace inequities due to religious discrimination, as defined in those cases, would certainly be on the list of relevant legal history.

[Otto]

Originally Posted by Pirogi

Cases relating to workplace inequities due to religious discrimination, as defined in those cases, would certainly be on the list of relevant legal history.

Frazee doesn't deal with employer-employee relations. Frazee himself didn't get fired over any personal belief; he was unemployed to start with and then had his unemployment compensation terminated for refusing a temporary job that would have required working on Sunday. There was never any question about the religious nature or sincerity of the belief.

As such, it's a case about the state's duties and not those of any private employer. There's not even any particularly noteworthy law in it--the state's case was awful, and they succeeded on the appellate level largely based on the court's bizarre public-policy conclusion that "[i]f all Americans were to abstain from working on Sunday, chaos would result."

Relevant cases here, as linked to above, would include Friedman v. Kaiser and Anderson v. OCTA. Even if OP hung on to be fired and contested a denial of benefits (which it does not sound like she's particularly interested in), Frazee probably would put in an appearance as little more than a passing footnote, if that.

[ChristaN]

I discussed this with my supervisor on Friday who suggested that I email a number of people including the chief medical officer of the health system, the director of HR and others. I did that and explained that, due to my strong ethical and moral beliefs, I could not get this vaccination. I did mention my consistent history of declining the vaccination for this reason and my 22 yr history as a vegan.

My understanding was that the policy was the be emailed to all employees on Friday. I suspect that my unexpected question threw a wrench in that in that all of those I emailed opened the email but none have replied yet and the email announcement to staff didn't go out on Friday. The EEOC's booklet on Title VII and religion pretty explicitly states that strongly held moral beliefs are considered equivalent to religion.

I'll let you know when I have an update.