Vaccine Rights
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EMPLOYEES
Last revised September 2014
Employee Vaccine Mandates:
Observations of an Vaccine Rights Attorney
(8-10-14 article, hospital flu vax update)

Immunization Action Coalition (IAC),
Influenza Vaccination Honor Roll

| Title VII and the EEOC | Religious Freedom Restoration Acts |
| Equal Protection | Contracts | Other Factors
| CDC: State Immunization Laws
for Healthcare Workers and Patients

| Hospitals with Influenza Mandates, & Policies |

| College Students in Healthcare Programs |

     Healthcare workers and other employees around the country are being told they must get vaccines or lose their jobs. Rights and options vary depending on the specific situation. Some  considerations are presented below (specific sections linked above).

     There are different categories of vaccine requirements in the workplace: 1) Those, if any, required by state law; 2) Those not required by state law but required by the employer, as a matter of company policy; and 3) those recommended by government agencies--e.g., Hep B is recommended by OSHA (but can usually be refused by signing the appropriate form, unless mandated by hospital policy or state law).


""Alan represented us last year when our hospital denied our religious exemptions. He knows his stuff! We won last year . . . Our hospital even changed the wording in their new policy due to Alan's comments..."
AM, October  2013


healthcare workers

[The hospital] did finally accept my letter from you . . . and I get to keep my job, without getting the vaccine.
Thank you again for your help with this!"

HG, December  2009

Vaccine Exemptions E-Book


The Authoritative Guide to
Vaccine Legal Exemptions


STATE EXEMPTION LAWS

     Some states have vaccine requirements and exemptions for healthcare workers.  A few have medical exemptions; a couple have religious and one has religious and philosophical exemptions. The CDC posts this information here. However, most states' exemption laws apply to students, and not to employees.
TITLE VII and the EEOC

     Title VII of the Federal Civil Rights Act of 1964 requires qualifying employers (more than 15 employees, public or private) to reasonably accommodate their employees' religious beliefs. Widespread hospital policies allowing religious exemptions support the contention that healthcare facilities can reasonably accommodate employees' religious objections to immunizations, generally. The EEOC (Equal Employment Opportunity Commission), a federal agency that enforces anti-discrimination laws and investigates employer discrimination complaints, also supports employees' right to refuse vaccines in the workplace. However, while most hospitals have policies allowing employees to refuse vaccines for religious reasons, most are unlawfully restrictive--e.g., require support from a religious leader, have excessive mask policies, require employees to sign statements they don't agree with, etc. These policies exceed employers' legal authority, but administrators may not be able to hear this from an employee, so workers in this situation may need the help of an attorney to successfully exercise an exemption.

     Based on what my clients from around the U.S. tell me, most hospital employees who attempt an exemption on their own are not successful. It can be critical, therefore, when requesting a religious exemption to vaccines in the workplace, to enlist the help of an experienced attorney beforehand, to avoid the legal pitfalls that have caused most employees' exemption requests to be rejected. Unfortunately, this is a legal arena that does not follow "common sense" thinking. Bottom line, it can be very difficult to fix a flawed religious exemption statement after it has already been submitted.

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RELIGIOUS FREEDOM RESTORATION ACTS

     The federal government and about a dozen states have a Religious Freedom Restoration Act or equivalent legislation that requires government to use the least restrictive means to achieve a compelling state interest when imposing on the free exercise of religious beliefs. While current thinking would consider vaccines to be a "compelling state interest," the "least restrictive means" would arguably not require that everyone be immunized, since the widely held "herd immunity" claims to protect all so long as most are vaccinated. This may provide a basis for vaccine religious exemptions where these acts apply, in addition to federal civil rights law.

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CONTRACTS

     In 2005, the Washington State Nurses Association won a federal court case against a hospital's mandatory flu shots for nurses. The court held that the hospital's unilateral imposition of flu shots violated the nurse's union's collective bargaining agreement, which required the hospital to bargain collectively with the union over all terms and conditions of employment. The case was confirmed on appeal to the 9th Circuit in 2007. See 
VA Mason Hosp. v. WA State Nurses Assn., 511 F.3d 908 (2007).

     One weakness in the hospital's position was the lack of public policy favoring mandatory flu shots. However, since the alleged 2009-2010 pandemic (which was not a real pandemic at all), hospitals around the country have been implementing seasonal and swine flu vaccine mandates for employees that risks changing policy in a way that could affect this argument in future cases.

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OTHER FACTORS

WORKPLACE VACCINE INJURIES AND DEATHS: WHO PAYS?  All vaccines carry a risk of injury or death. Look at the results of just one of over 120 U.S. law firms that handle vaccine injury and death cases: Maglio, Christopher and Toale--flu shots are deadly.

If a hospital employee is injured by a flu vaccine, who is liable? Is this a workman's compensation matter? Flu vaccine injury and death is solely a matter for the National Vaccine Injury Compensation Program, and not workman's compensation, as the federal program supersedes any state worker's comp laws.

DO FLU SHOTS WORK?  See the article linked at the top of this page, and also The Truth About the Flu Shot by Dr. Sheri Tennpenny citing studies that document flu vaccine failure. Some studies show that flu shots increase your chance of getting the flu or a flu-like illness. Finally, Dr. Hugh Fudenberg, MD, a world leading immunogeneticist, found that 5 consecutive annual flu shots increased Alzheimer's rates by a factor of 10 compared to 2, 1, or no shots.

WILL FORCED EMPLOYEE FLU SHOTS AFFECT EMPLOYEE MORALE?  As many as 1/2 of healthcare workers say they don't want flu vaccines. Therefore, vaccine mandates could have a significant impact on employee morale, a particularly bad thing in any patient-care setting! Here are just a few of the many 2009 articles showing opposition to swine flu vaccines from healthcare professionals:
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College Students in Healthcare Curriculums: Clincal Work in Local Hospitals

College students doing clinical work in hospitals and other local heathcare facilities are being told that they are required to get shots, in addition to those required by state law for all college students. These additional shots are required by the hospital or other institution, and may not be covered by state exemption laws. However, Title VII of the 1964 Civil Rights Act makes it unlawful for employers "controlling apprenticeship or other training or retraining" to discriminate against individuals based on religion and other factors, so students in healthcare curriculums have a federal right to refuse vaccines in their clinical work, for religious reasons, and if denied that right, may file an EEOC complaint alleging discrimination. However, since m
ost who attempt this exemption on their own are turned down. Schools will tell you--accurately as far as it goes--that they are under contract to provide vaccinated students for clinical training, and that there is no exemption. So, it is unlikely that they will do anything based on a student's telling them that they have a legal right under federal employee-employer (Title VII) law.

The right is there. HOWEVER, very few schools and clinical facilities are aware of the application of Title VII to this specific situation. So, it is a difficult one to win. Your chances are best if you involve the assistance of a knowledgeable attorney.

Medical exemptions are probably acknowledged, but what qualifies is subject to debate, and schools are likely to apply strict standards.

While Title VII provides a legal right, it does not address vaccines specifically. Therefore, the better long-term solution is to become legislatively active. We need to convince state legislators to enact laws giving all persons, including students, the right to refuse vaccines when doing clinical work in local hospitals. Presently, few states have statutory exemption laws for healthcare employees, and probably none have laws for students doing clinical work in local hospitals as part of their college curriculum.

 
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Alan Phillips, Attorney at Lawattorney@vaccinerights.com, 828-575-2622
 
© January 2012