New Jersey Lawsuits Allege Discrimination for Flu Shot Refusals

Winter and spring are “flu season” throughout the U.S. and much of the world, and millions of people obtain flu vaccine shots in order to obtain some protection against the disease. Influenza, or the “flu,” can be a very serious disease. The health care industry has required employees to obtain annual flu shots for some time, but other employers have also begun to require flu shots. Some people cannot get flu shots for medical reasons, and others decline them for a variety of personal reasons. Several recent lawsuits have considered whether New Jersey law prohibits employers from taking adverse action against an employee who refuses to get a flu shot, based on various theories of religious discrimination.

For most people, a case of the flu means a few miserable days in bed, but it can mean hospitalization or even death for some. According to the Centers for Disease Control and Protection (CDC), the annual death toll from 1976 to 2007 ranged from a low of around 3,000 to a high of close to 49,000 in a single season. The vast majority of fatalities are people who are 65 years old or older.

Preparing a vaccine against seasonal influenza, the type of the disease that rears its head during the winter and spring months, is difficult, since it requires advance predictions of which strains are most likely to appear. Unlike vaccines for childhood diseases like measles and whooping cough, a flu vaccine obtained one year is not likely to provide protection beyond that year. It is also not guaranteed to prevent the flu. It only bolsters the immune system.

Flu shots are recommended by the CDC for most people, but they are not legally required for most people. Employers may require some or all employees to get annual flu shots, but they typically must allow certain exemptions. People who are allergic to the flu vaccine or any of its ingredients are exempt for medical reasons. Where employers are most likely to run afoul of New Jersey law is in regard to non-medical exemptions.

The New Jersey Superior Court, Appellate Division ruled in favor of a former employee who claimed that her termination for refusing a flu shot on non-medical, non-religious grounds violated her rights under the New Jersey Law Against Discrimination (NJLAD). Valent v. Bd. of Review, Dept. of Labor, 91 A.3d 644 (N.J. App. 2014). The plaintiff, who worked as a registered nurse at a hospital, declined to get a flu shot, but she agreed to wear a surgical mask when working with patients during flu season. The hospital’s policy allowed someone objecting to the flu vaccine on religious grounds to wear a mask instead. Since the plaintiff did not assert a religious objection, the hospital found her in violation of its policy and terminated her. The court found that, by favoring “religion over non-religion,” the employer violated the plaintiff’s First Amendment rights. Id. at 648, quoting Marsa v. Wernik, 86 N.J. 232, 245 (1981).

A lawsuit by two people outside the health care field alleges violations of the NJLAD. Watson, et al. v. Lutheran Social Ministries of N.J., Inc., et al., No. L-002887-15, complaint (N.J. Super. Ct., Burlington Co., Dec. 21, 2015). The plaintiffs claim that their employer terminated them after they refused to obtain flu shots or to wear surgical masks in their workplace, which is not a health care facility. Their claims include religious discrimination and retaliation in violation of the NJLAD.

If you need to speak to an attorney about a wrongful termination matter in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at (646) 867-7997.

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