How hospitals violate healthcare worker vaccine rights - with impunity

Thursday, September 22, 2011 by: Alan Phillips, J.D.
Tags: healthcare workers, vaccines, health news

(NaturalNews) Following swine flu emergency declarations in 11 states, Washington D.C., American Samoa and the entire U.S. in 2009, hospitals around the country began implementing new flu vaccine mandates for their employees. Healthcare workers who worked for decades without getting vaccinated were suddenly faced with choosing between getting vaccinated and getting fired. Some had observed over the years that it was the vaccinated workers who most often took sick leave each winter to recover from flu-like illnesses. Nevertheless, since the so-called pandemic,[1] hospitals have increasingly been requiring vaccination for their employees. And the pro-vaccine rush hasn't stopped there. In more recent months, entirely new categories of employees have been facing vaccine mandates, including airline employees, pharmacists, and hospital sales reps. Ultimately, all workers and adults will be in the sites of the rapidly advancing pharmaceutical vaccine agenda.

Presently, immunization laws and policies for healthcare workers vary widely from state to state and from hospital to hospital. According to the CDC, some states have statutory vaccination requirements for healthcare employees, some have only recommendations, some have requirements and recommendations, and about 20 have no requirements or recommendation at all, leaving the matter entirely to hospital policy.[2] Of the 12 states that require one or more vaccines, only six offer a medical exemption, two offer medical and religious (Maryland and New Hampshire), and one offers medical, religious and philosophical (Maine). So, where employer-required vaccines are concerned, most healthcare workers are dealing with hospital policy only or a mixture of policy and state law.

In the absence of applicable statutory exemption laws, hospital employees are left with indirect legal arguments to support the right to legally refuse vaccines in the workplace without penalty. Here's an overview of one approach:

Title VII of the Civil Rights Act of 1964 prohibits discrimination of employees covered by the Act on the basis of race, color, religion, sex or national origin.[3] With regard to religion, employers must reasonably accommodate their employees' religious beliefs unless it would cause an undue hardship for the employer. (What potentially qualifies for a religious exemption is quite broad, but there are also legal pitfalls to avoid.)[4] However, since Title VII does not specifically mention healthcare employees and vaccines, we have to look to legal precedent to get a definitive legal answer to the question of whether or not -- and if so, how -- Title VII applies to this specific situation. Unfortunately, there appears to be no legal precedent on this specific point. So, we must assess the strength of the legal arguments for and against an employee's right to refuse vaccines in the workplace for religious reasons under Title VII. For starters, don't worry if you're not a member of a church with tenets opposed to immunizations. First Amendment protection of the "free exercise" of religion is broad. Virtually anyone who is not an atheist can potentially qualify for a vaccine religious exemption.

When assessing whether or not hospitals can "reasonably accommodate" their employees' religious beliefs, we could examine the herd immunity theory (all are protected if most are immune) vs. the heightened infectious disease concerns in hospitals, but since there are hospitals around the country with Title VII policies allowing employees to refuse vaccines for religious reasons, this hospital environment debate may be a secondary concern. In fact, the federal government even recognizes a possible Title VII exemption for religious objections to pandemic vaccines during a declared pandemic.[5] So, if a hospital refuses to accommodate their employees' religious beliefs by refusing all vaccine religious exemptions, period, they are confessing, in effect, that infectious disease is a greater concern for them than other hospitals that do allow Title VII exemptions. Of course, few if any hospitals would argue this as their reason for rejecting any and all employee religious exemptions. Perhaps there's another reason... (Did I just hear someone say: "Follow the money"?)

But there's a more insidious aspect to this. Many hospital employees are "at will" employees. They can't be fired for an unlawful reason, but they can be fired at any time for no reason. So, if a healthcare worker is denied an exemption and successfully sues their employer under Title VII, they may get their job back, but they may also be terminated shortly thereafter for "no reason". The practical result is that some hospitals get away with violating their employees' rights, because they can, and not because they have a good-faith legal argument favoring their pro-vaccine position. Employees whose employer takes a hard line "so sue me" position may not have much of a choice.

Fortunately for now, the majority of hospitals appear to recognize a Title VII right for their employees to refuse vaccines for religious reasons, and most of my healthcare worker clients have been successful in refusing vaccines and keeping their jobs without facing the decision of whether or not to sue. As long as you avoid the legal pitfalls and your employer has a religious exemption policy, there's a good chance of success.

If your employer requires vaccines you wish to avoid, the first step is to find out what your employer's exemption policy is. It's best not to talk about your religion or religious beliefs before finding out what the policy is and what beliefs do and don't qualify, legally, for religious exemptions. Unfortunately, this is an arena where a common sense approach can cost you the exemption; what many people think should qualify as a religious objection often doesn't. For example, copied belief statements can be rejected as insincere, so copying from anti-vaccine websites is risky. These websites mean well, and I mean no disrespect, but they don't understand the law. People have needlessly lost exemption rights by relying on anti-vaccine websites in the exercise of vaccine religious exemptions.[6]

If your employer has an overly strict policy -- e.g., requires membership in an organized religion or support from a religious leader -- they are, arguably, overstepping their legal boundaries. You may need an attorney to explain your rights to your employer, to cite the legal precedent that supports your right without having to meet either of these requirements. If they have a lenient policy and ask only for a statement of your beliefs, that's better, but you should still consider consulting an attorney to avoid the legal pitfalls, as this is one arena where your beliefs are likely to be closely scrutinized for flaws that would allow them to reject you.

Disturbingly, some hospitals have even rejected a medical doctor's recommendation that an employee not be vaccinated. The best long-term solution, then, may be for all concerned to become legislatively active. We need to educate our representatives about the true risks and failings of vaccines and the many better and safer means of addressing infectious disease concerns. We need new laws that allow informed choice, require transparency for all conflicts of interest, and that require prosecution of corruption. I'm happy to help activists anywhere in the U.S. with any pro-informed-choice vaccine legislative initiatives and with legal arguments against limitations on vaccine exemptions and adding more vaccine mandates. For a list of some of the legislative projects I've worked on so far, please see Vaccine Choice: Legislative Projects I'm also available to assist individuals with understanding and exercising their exemption rights wherever vaccines mandates are concerned in the U.S.

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[1] We now know that the 2009-2010 Swine Flu Pandemic was a fake pandemic. For documented details, see the Swine Flu Review

[2] http://www2a.cdc.gov/nip/StateVaccApp/statev...

[3] http://en.wikipedia.org/wiki/Civil_Rights_Ac...

[4] According to federal legal precedent on vaccine religious exemptions, the First Amendment requires only a belief opposed to immunizations that is religious in nature and sincerely held. There are legal pitfalls as well, though, so employees serious about avoiding vaccines in the workplace for religious reasons should consider consulting an attorney experienced in this arena. If you are rejected due to a flawed religious beliefs statement, you may be in the difficult position of having to say, "Oops -- what I meant to say was...", with little chance of success.

[5] May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of it employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
http://answers.flu.gov/questions/4766

[6] Some people have been successful with school exemptions by copying from anti-vaccine websites, probably because some state exemption laws do not allow the state to scrutinize exemption claims. But in those states and federal contexts where beliefs can be scrutinized, copying can cost you the exemption.


About the author:
Alan Phillips, Vaccine Rights Attorney
[email protected], 1-828-575-2622
Vaccine Rights (www.vaccinerights.com)