New Jersey Appellate Division Considers Employment Discrimination Claim Based on Non-Religious Flu Shot Refusal

flu moleculesControversies over vaccinations can intersect with employment law when employers require them for their employees. Anti-discrimination statutes like the New Jersey Law Against Discrimination (NJLAD) may offer some protection for employees who decline employer-mandated vaccinations for certain reasons. The New Jersey Appellate Division recently considered whether a plaintiff could claim religious discrimination under the NJLAD based on an employer policy that allowed medical and religious exemptions for the annual flu shot but not secular exemptions. Brown v. Our Lady of Lourdes Medical Ctr., No. A-4594-14T2, slip op. (N.J. App., Oct. 3, 2016). While the court did not accept the claim, it left the door open and offered useful guidance for how NJLAD religious discrimination claims might work in this type of situation.

Some people cannot get vaccinations for medical reasons, such as allergies or immune system disorders, while others decline vaccinations for religious reasons. Still others may have objections to a vaccination requirement that are neither religious nor medical. The NJLAD prohibits discrimination in employment on the basis of numerous factors, including “creed.” N.J. Rev. Stat. § 10:5-12(a). Religious discrimination claims under the NJLAD are possible for disparate treatment related to religious beliefs, but it remains unclear how this might apply to flu shot refusals.

In 2014, the Appellate Division found that an employment policy that only allowed religious exemptions to a flu shot requirement violated the First Amendment. Valent v. Bd. of Review, Dept. of Labor, 91 A.3d 644 (N.J. App. 2014). While the case dealt with an adverse employment action, the decision did not specifically cite the NJLAD. The plaintiff worked in a hospital that allowed religious exemptions to the flu shot requirement, provided the employee wore a surgical mask when interacting with patients. The plaintiff offered to do the same, but the hospital declined her request for an exemption because her objection to the flu shot was not based on a religious belief. It then fired her for violating the flu shot policy. The court found that the policy violated the plaintiff’s “freedom of expression” by “improperly endorsing the employer’s religion-based exemption…and rejecting the secular choice proffered by [the plaintiff].” Id.

The plaintiff in Brown sought to make a comparison to the facts in Valent. She worked for the defendant, a hospital that required employees to obtain annual flu vaccinations in order “to minimize transmission of the [flu] in the workplace.” Brown, slip op. at 2. It allowed exemptions based on “religious beliefs supported by documentation from clergy” or “documented medical conditions.” Id. at 3. The defendant denied two requests by the plaintiff for a medical exemption and then terminated her for violating the vaccination policy by refusing to get the shot.

The plaintiff’s lawsuit alleged NJLAD violations for “failing to provide a medical accommodation [and] terminating her for exercising her rights.” Id. She sought leave to amend her complaint to add a religious discrimination claim. The denial of this motion took the case to the Appellate Division, which affirmed the denial but did not dismiss the lawsuit. The court found that the plaintiff had not established that she was a member of a protected class under the NJLAD, since she had not pleaded discrimination specifically, based on either religion or lack thereof. The court left the door open for religious discrimination claims based on an expressly secular objection.

If you need to speak to a religious discrimination attorney in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at 646-867-7997.

More Blog Posts:

New Laws, Regulations Regarding Employee Sick Leave Set to Take Effect in New Jersey, The New Jersey Employment Law Firm Blog, November 11, 2016

New York City Lawsuit Alleges Discrimination Based on Mental Health Conditions, The New Jersey Employment Law Firm Blog, October 6, 2016

New Jersey Lawsuits Allege Discrimination for Flu Shot Refusals, The New Jersey Employment Law Firm Blog, February 19, 2016

Photo credit: OpenClipart-Vectors [Public domain], via Pixabay.

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