What to do about religious discrimination at work from non-employer?
November 12, 2010 7:06 AM   Subscribe

How to handle religious discrimination?

My wife is employed by a public university in Ohio as a psychiatric research assistant. The university is associated with, but legally distinct from, the nearby hospital. My wife's job requires that she go to the hospital's in-patient psychiatric unit on a nearly daily basis for recruitment purposes. Consequently, my wife must be credentialed by the hospital and abide by the hospital's regulations. The hospital requires that all credentialed persons receive a flu vaccine each year.

The hospital offers an exemption form, which they revue, and either grant or deny the exemption. My wife filled out the exemption form, writing that she holds a religious belief that prohibits her from receiving the vaccine. Her request for exemption was denied. My wife requested that her application be reviewed again, noting that religion is a protected class, etc. She did not receive a reply.

So, my wife's boss made a phone call to the hospital to find out what was going on. The hospital is refusing to review her request for a vaccination exemption unless she writes paragraphs about her personal religious beliefs and how they are incompatible with receiving a flu vaccination.

The hospital's actions appear to me to be absolutely illegal and discriminatory. Employers can't ask about future plans to bear children, how can this hospital request detailed personal religious information for their scrutiny, making qualitative judgments regarding whose religious beliefs qualify and whose do not? What are we to do in this situation? If she were employed by the hospital, I would immediately file a formal complaint with the EEOC or the Ohio Civil Rights Commission, but, I don't know what to do since she has a different employer.

Thank you.
posted by dvrcthewrld to Law & Government (62 answers total) 8 users marked this as a favorite
 
I think an attorney well versed in Ohio employment law is going to be your best bet here.
posted by jquinby at 7:15 AM on November 12, 2010 [1 favorite]


IANAL, but I'd be surprised if legal protections against religious discrimination extended so far as to exempt a hospital worker from something like vaccination requirements, employee or not. Refusing to work with someone whose behavior is incompatible with the job does not seem the same as refusing to work with someone because of their religion, even if the behavior stems from religious belief.
posted by jon1270 at 7:18 AM on November 12, 2010 [8 favorites]


Employers have legal obligations to protect the health and safety of their employees. Since a hospital is a place where there is an increased likelihood of encountering people with the flu, it is therefore a reasonable precaution to require hospital employees to get a flu vaccination. So, the hospital is not as unreasonable as you may think that they are.

That said, you may still be able to obtain an exemption. I really do not see any reason why your wife should not provide a more detailed explanation of the religious basis for her refusal of the flu vaccine, as requested. You do not like the idea that the hospital considers itself to be a competent authority to judge the legitimacy of your wife's religious beliefs, but the hospital has to practice due diligence. If it is going to issue a religiously based exemption to a rule which is intended to protect health and safety, they have to at least make an effort to determine whether the exemption is legitimate, because health and safety are serious issues.

In the event that your wife does submit a more detailed explanation and is then still refused, you can then consult a lawyer on the feasibility of filing a lawsuit. But my guess is that the exemption will be granted if the details are provided.
posted by grizzled at 7:19 AM on November 12, 2010 [9 favorites]


Just to be clear, would your wife be able to write an explanation about how her religious beliefs are incompatible with receiving the flu vaccine?
posted by odinsdream at 7:23 AM on November 12, 2010 [4 favorites]


Is there a reason why your wife can't simply submit the information requested? Anyone could say 'its against my religion' to get out of doing something they don't want to do if no proof or justification is ever required. It seems to me the hospital is just trying to ensure that your wife's refusal to have the vaccine is due to legitimate religeous beliefs not because she's afraid of needles or a paranoid conspiracy theorist etc.

If your wife really can't have the vaccine because of her religious beliefs it then it shouldn't be difficult for her to write up a quick explanation of those beliefs.
posted by missmagenta at 7:29 AM on November 12, 2010 [7 favorites]


Employers have legal obligations to protect the health and safety of their employees. Since a hospital is a place where there is an increased likelihood of encountering people with the flu, it is therefore a reasonable precaution to require hospital employees to get a flu vaccination.
I'm pretty sure that this requirement exists to protect patients, not employees. Hospital patients are, in general, at particularly high risk of encountering complications from flu. The flu vaccine is not 100% effective, so they rely in part on herd immunity to protect them. Unvaccinated employees jeopardize the lives and safety of patients.

I agree that you should consult a lawyer. Perhaps your wife's religious denomination could put her in touch with one? Many hospitals have this kind of requirement, and I don't think it should be that hard to find out the legalities of getting an exemption.
posted by craichead at 7:30 AM on November 12, 2010


Presumably, the hospital has the same requirements for your wife as it would for, say, a nurse.

I can only speak for myself, but if I were in-patient at a major hospital, I would at the very least want to know that my nurse wrote a detailed explanation of why she's not vaccinated for measles, mumps, rubella, polio, flu, chicken pox, hepatitis, diphtheria, meningitis...

I'm sorry if that offends your religious beliefs, but yeah. It wouldn't be good enough for me to just have someone say, "Oh, this is against my religion." I have the luxury of assuming that your wife is telling the truth. The hospital, for legal and ethical reasons, does not.

Write the explanation or talk to a lawyer.

That is, of course, an entirely separate issue from whether I would demand another doctor or nurse if I found out that mine had beliefs of this nature. It's also not strictly germane to this question. Short answer, though: in a heartbeat.
posted by supercres at 7:32 AM on November 12, 2010 [16 favorites]


Is there a reason that your wife refuses to give further explanation than "I object on the basis of my religion"? Can she truly not say, "I am a member of religion X and our teachings include not getting vaccinated"? In order to be accommodated, she may be legally required to offer slightly more detail. Something that stands out to me on this EEOC page is this instruction for EEOC investigators:

"What religious belief or practice does the CP claim to have? In some cases, the CP’s credible testimony regarding his belief or practice will be sufficient to demonstrate that it is religious. In other cases, however, the investigator may need to ask follow-up questions about the nature and tenets of the asserted religious beliefs, and/or any associated practices, rituals, clergy, observances, etc., in order to identify a specific religious belief or practice or determine if one is at issue."
posted by Meg_Murry at 7:33 AM on November 12, 2010 [2 favorites]


In order for there to be religious discrimination, there actually has to be some evidence of religion. Hence, they're asking you to provide some evidence. I'm curious what religion your wife is that prevents her from receiving the vaccine.
posted by cosmicbandito at 7:44 AM on November 12, 2010


It's not illegal for them to ask for enough content to determine a sincere and specific religious belief.

Seshadri v. Kasraian, 130 F.3d 798 (7th Cir. 1997). An employee bringing a religious
discrimination claim need not belong to an established church. An individual who seeks to
obtain a privileged legal status because of his religion cannot preclude, however, inquiry into whether he or she has a religion.

Bushouse v. Local Union 2209, UAW, 164 F. Supp. 2d 1066 (N.D. Ind. 2001). The union did
not violate Title VII when it required the plaintiff to provide a corroborating statement from a
third party that he held a sincere religious belief that precluded him from financially contributing to labor unions.

Burns v. Warwick Valley Cent. Sch. Dist., 166 F. Supp. 2d 881 (S.D.N.Y. 2001). While an
employer is not permitted to assess the objective accuracy of a religious belief, it is permitted to inquire into the religious basis of a request for accommodation in order to assess whether the belief is sincerely held.
(all from this EEOC document)

If your wife simply wrote "SDA" on her form they might not even know what that means or why Seventh Day Adventists would refuse vaccination.

If they are deliberately stalling and trying to get her to change her mind that sounds fishy, but it could just be that there are not many people of your denomination working in the hospital and they have not encountered this refusal before so they're asking for more detail, which is totally legal and reasonable.

Vaccination in a hospital setting is something you do not mess around with. I was in the same capacity as your wife as someone not employed by but working in a VA building, and I had many similar restrictions for my own safety and for patient safety. This isn't exactly like hiring and firing; being unvaccinated presents an identifiable threat to the community. Maybe they can accommodate her by removing her from patient care areas that are higher risk and have her do phone recruitment or something, but it is probably not the case that they are legally obligated to accept any religious refusal to vaccinate without question and let the employee continue to work in their normal capacity in a high-risk setting.

A lawyer might help your wife know what's reasonable to expect in this situation and what her options are with respect to accommodation.
posted by slow graffiti at 7:45 AM on November 12, 2010 [23 favorites]


With the recent rash of people who erroneously believe (not think, because that would require logical facilities) that vaccines cause autism, they are probably covering their own ass. Give the bare minimum explanation of your legitimate religious beliefs that preclude your wife from receiving the vaccine.
posted by cellphone at 7:46 AM on November 12, 2010


The hospital is refusing to review her request for a vaccination exemption unless she writes paragraphs about her personal religious beliefs and how they are incompatible with receiving a flu vaccination.

This just seems like the hospital is doing due diligence to make sure their employees aren't making up reasons to get out of having a vaccine. I don't see how asking for evidence can be discriminatory?
posted by gaspode at 7:50 AM on November 12, 2010


...how can this hospital request detailed personal religious information for their scrutiny...?

Because that's how it often works in the US. See also: Native Americans and peyote, Jehovah's Witnesses and transfusions, Christian Scientists and medicine in general. My (layperson's) understanding of the situation is that, if you claim to merit an exception to a generally held principle based on your religious beliefs, you should expect to have to actually provide documentation of those beliefs. A system in which someone can say "I am a member of The Church of Joe, which exempts me from laws 1, 2, and 3, and also it's deeply personal and I cannot talk about my religious life or what specifically the Church of Joe believes" is not tenable.

Shorter: "personal religious information" becomes a matter of public interest when it extends to negotiating the social contract.
posted by AkzidenzGrotesk at 7:51 AM on November 12, 2010 [7 favorites]


Your wife's religious rights end where they conflict with the rights of patients to continue to live. Being vaccinated is a bona fide occupational requirement in a hospital. If her beliefs prevent her from receiving a vaccine to a disease that kills 40,000 Americans a year, when she will be working around a vulnerable population, then she should look for another job.
posted by Dasein at 7:54 AM on November 12, 2010 [14 favorites]


Oh, and to address the specific issue of the hospital not actually being 'the employer' here; I don't think it matters if the university is telling your wife that she needs to do everything the hospital tells her. The university and the hospital are probably a united front similar to branches in a corporation as far as the law is concerned, but again, IANAL and if she feels her rights are being violated she should get one.
posted by slow graffiti at 7:54 AM on November 12, 2010


As others have stated, asking your wife for a couple paragraphs explaining why her religious beliefs conflict with receiving the vaccination seems completely reasonable and logical. If she writes the paragraphs and they still deny, then and only then should you start talking about filing with EEOC or the Ohio Civil Rights Commission.
posted by coupdefoudre at 8:02 AM on November 12, 2010


Thank you for your responses, everyone. Most responses didn't address the complication that concerns me--that my wife is not employed by the hospital. I didn't want to see responses questioning the legality of the hospital's actions because I know they are illegal; that is, I know they are acting illegally when they treat actual employees this way.

To be clear:
____________
From the U.S. Equal Employment Opportunity Commission: "...under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII..." (http://www.eeoc.gov/facts/pandemic_flu.html) Information repeated by the U.S. Federal Government via flu.gov--(http://answers.flu.gov/questions/4766)

LePage v. Wyoming: ...no right or ability to consider the sincerity or credibility of those requesting exemptions; ...exceeded its authority by inquiring into the sincerity of religious beliefs; "...the issuance of a religious exemption is not a discretionary function but is a ministerial duty..."

The review committee must be making quality judgments of the explanations of religious reasons, accepting some while denying others. An activity that fits squarely within the definition of discrimination.

The U.S. Supreme Court found, in Frazee V. Illinois Dept. of Security, 489 U.S. 829, that an exemption may not be denied simply because a person is not a member of a formal religious organization.
Applicable law, has been interpreted to mean that religious beliefs are protected even when no religious group espouses such a belief or when the religious group to which an individual professes to belong may not advocate or require such belief. In simpler words, if I had written in my request for exemption that I believed an apple came to me in a dream from God to tell me not to get vaccinated, than they would be legally required to grant my exemption. See Title VII of the Civil Rights Act of 1964, Part 1605.1-Guidelines on Discrimination Because of Religion.
The Infection Control review group tasked with reviewing vaccination exemption requests does not have the authority to deny my wife's request, or the request of any other person, for religious exemption. She is required by law to do no more than inform them that her personal religious beliefs are at odds with their mandate to be vaccinated. She has fulfilled that duty.
____________

Furthermore, other people, even in her own department (also non-employees), were given exemptions because of religious reasons and reasons of moral conscience. She absolutely must be given the same consideration as people of other faith traditions.

If she were employed by the hospital and all of this happened, my wife and I would have already filed a formal complaint and be talking to a lawyer. The question really comes down to: Can the hospital get away with this religious discrimination because of the fact that my wife is not an employee?
posted by dvrcthewrld at 8:05 AM on November 12, 2010


"...under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII..." (http://www.eeoc.gov/facts/pandemic_flu.html) Information repeated by the U.S. Federal Government via flu.gov--(http://answers.flu.gov/questions/4766)

Burns v. Warwick Valley Cent. Sch. Dist., 166 F. Supp. 2d 881 (S.D.N.Y. 2001). While an
employer is not permitted to assess the objective accuracy of a religious belief, it is permitted to inquire into the religious basis of a request for accommodation in order to assess whether the belief is sincerely held.


There you go. It's not that illegal.
posted by Authorized User at 8:08 AM on November 12, 2010 [3 favorites]


"The question really comes down to: Can the hospital get away with this religious discrimination because of the fact that my wife is not an employee?"

This isn't answerable without considerably more specifics about the relationship between the two entities and any applicable agreements.

Furthermore, your interpretation of the law is ... limited. You definitely need a lawyer, both to deal with the relationship between the two entities and your wife's rights and responsibilities contingent thereupon, and to help you understand that applicable law, which you do not appear to.
posted by Eyebrows McGee at 8:11 AM on November 12, 2010 [8 favorites]


You should talk to a lawyer. My recollection is that a rule that inconveniences (or "discriminates against") a religious person can be enforced if the rule is value-neutral (in other words, it's not intended to discriminate against a religious belief) and necessary. For example, if a person has a genuine religious need to use a mind-altering drug, they can still be forbidden from flying a plane. Or, for another example, if a person has a genuine religious prohibition against vaccination, they can still be forbidden from endangering other people's lives by being around vulnerable, hospitalized people.

This statement from the EEOC website explains the rule: "Title VII requires an employer to reasonably accommodate the religious practices of an employee or prospective employee, unless doing so would create an undue hardship for the employer. Some reasonable religious accommodations that employers may be required to provide workers include leave for religious observances, time and/or place to pray, and ability to wear religious garb." If it's not reasonable for the hospital to allow your unvaccintated wife to be around sick people, then they don't have to do it.

I am not your lawyer, and this is not legal advice. You should consult an attorney who is an expert in employment law.
posted by Mavri at 8:12 AM on November 12, 2010 [2 favorites]


Are you sure that your interpretation is more correct than those who have posted other case law and information from the EEOC's own materials? Are you an attorney yourself? It sounds like you aren't, which would not really make you qualified to make this determination on your own. If you aren't pleased with the responses that say that the hospital is probably within its legal rights, then you should probably talk to an actual lawyer.
posted by elpea at 8:12 AM on November 12, 2010 [1 favorite]


Since you seem to have determined without a lawyer that the law is on your side, then at least hire a lawyer so you know who to sue. Again, my money is on the university being liable since the hospital's requirements are essentially enforced by the university as job duties, but that's a hunch. Lawyer up.
posted by slow graffiti at 8:13 AM on November 12, 2010


A few comments were made as I was writing my earlier reply.

For those interested in the specific situation, my wife's credentials don't extend beyond access to the psychiatric in-patient unit; so, she is not coming into contact with patients with compromised immune systems. Also, we're talking about the flu vaccine, not MMR or polio or Hep B. The majority of people in my wife's office have received the flu "vaccine" this year and have also caught the flu already. Furthermore, people who contract the flu are supposed to call off sick.

(Side note: It would be far more logical, if our concern is over preventing the spread of communicable disease, for grocery stores to require that all employees be vaccinated than for hospitals to do it. Hospitals are built, physically built, with the prevention of disease communication in mind.)
posted by dvrcthewrld at 8:14 AM on November 12, 2010


I didn't want to see responses questioning the legality of the hospital's actions because I know they are illegal

Actually, you don't, you just think they are. You need to talk to a lawyer. There's a very good chance that in these circumstances it would be unreasonable to accomodate your wife's beliefs, because doing so would put patients at risk of a deadly infection. The fact that a belief is motivated by religion doesn't give the believer the right to do whatever they please and obtain/retain employment.
posted by Dasein at 8:15 AM on November 12, 2010 [3 favorites]


The question really comes down to: Can the hospital get away with this religious discrimination because of the fact that my wife is not an employee?

Sigh. I am a lawyer, and I am even a former employment lawyer, and all ethical constraints aside, I wouldn't even begin to be able to answer this question offhandedly without doing some pretty detailed legal research into Ohio law. So, find a lawyer if you want a good answer and this is important to you. Check out NELA.
posted by yarly at 8:17 AM on November 12, 2010 [7 favorites]


Under the section you quoted on Title VII it says "sincerely held religious belief." All the hospital is doing is asking for information to assess that the religious belief really is sincerely held. It is completely legal for them to do that (see reference in others' posts).

Simply saying you object for religious reasons isn't really enough to determine that and weed you out from the people who are using it as an excuse because they are needle-phobic, a conspiracy theorist, or some other reason that could make the hospital very liable.

So, I don't see how the question is really about employee vs not-an-employee. They would do this even with their own employees because they have the right to assess if a religious belief is sincere.
posted by joan_holloway at 8:19 AM on November 12, 2010


This seems to be an overlooked fact:
"other people, even in her own department (also non-employees), were given exemptions because of religious reasons and reasons of moral conscience. She absolutely must be given the same consideration as people of other faith traditions."

As soon as they deny a clearly religious request, than it meets the definition of discrimination. "Bob" was given a religious exemption but "Betty" was not. They both claimed to hold religious beliefs incompatible with flu vaccination, that's discrimination no matter what perspective one has.
posted by dvrcthewrld at 8:19 AM on November 12, 2010


Oh, and I am definitely not a lawyer. You need one to help you interpret the situation and to determine if what you think is the big question really is.
posted by joan_holloway at 8:21 AM on November 12, 2010


I am an attorney, but I am not your attorney. This is not legal advice.

You need to consult a competent employment law attorney in Ohio. By relying on your own research and lay advice you are running a significant risk of assuming you are on firmer legal ground than you think.

I will give you one example: LePage v. Wyoming was a Wyoming Supreme Court case based on the Wyoming state Constitution and Wyoming state law. It has not been cited by the Ohio or federal courts, and it has little relevance here.

my wife's credentials don't extend beyond access to the psychiatric in-patient unit; so, she is not coming into contact with patients with compromised immune systems

You can't possibly know that. Elderly people, people with AIDS, and people taking immunosuppresants, to name just three examples, can need psychiatric services just as much as anybody else. Perhaps more so.

Furthermore, people who contract the flu are supposed to call off sick.

Unfortunately, many infections are contagious before overt symptoms manifest themselves. From the CDC: "Most healthy adults may be able to infect others beginning 1 day before symptoms develop and up to 5-7 days after becoming sick....That means that you may be able to pass on the flu to someone else before you know you are sick, as well as while you are sick. Some persons can be infected with the flu virus but have no symptoms. During this time, those persons may still spread the virus to others."
posted by jedicus at 8:24 AM on November 12, 2010 [11 favorites]


For those interested in the specific situation, my wife's credentials don't extend beyond access to the psychiatric in-patient unit; so, she is not coming into contact with patients with compromised immune systems.

You don't know that. How are psychiatric illnesses and compromised immune systems mutually exclusive?
posted by asockpuppet at 8:25 AM on November 12, 2010 [1 favorite]


You keep saying your wife is being refused an exemption. She's not. She's being refused an exemption unless she explains why she needs that exemption. IANAL, but I really doubt you'll get very far with a suit when you haven't even followed through with the employer's own legal procedures for determining exemptions.
posted by Tomorrowful at 8:26 AM on November 12, 2010 [4 favorites]


The type of vaccine is irrelevant. Someone's workplace rights regarding one medically-accepted vaccine are the same as another medically-accepted vaccine.

The department that your wife works in is irrelevant. By virtue of being in a hospital, she will be around sick people. Whether or not the patients she interacts with are immunocompromised, they are at a much higher risk of hospital-related infections and diseases. They can't be forced to be immunized, so everyone around them must be to try to keep some shred of herd immunity. The reasonable alternative required by law would be a position with no patient contact at all.

Bob getting past the hospital's regulations is irrelevant to Betty, no matter how much or how little effort he had to do to justify or explain his religious beliefs.

It's irrelevant whether your wife works directly for the hospital or not. The hospital probably has the same requirements for anyone who enters in an official medical capacity.

I don't understand your unwillingness to write the explanation. Clearly the hospital is willing to work with you, provided that they can, for their own liability reasons, verify that this is a legitimate exemption.

I suggest that you stop defending yourself here, and if you're truly unwilling to write the explanation, to lawyer up immediately.
posted by supercres at 8:30 AM on November 12, 2010 [2 favorites]


Yeah, to answer your question, the way to handle this is to go ahead and explain the basis of your wife's objection to the hospital. That's a perfectly reasonable request.
posted by Justinian at 8:34 AM on November 12, 2010


By relying on your own research and lay advice you are running a significant risk of assuming you are on firmer legal ground than you think are.
posted by jedicus at 8:35 AM on November 12, 2010 [1 favorite]


dvrcthewrld, you're pushing back a lot on the answers you're getting, so let's go back to the questions you asked. There are two sentences with question marks in your post.

Employers can't ask about future plans to bear children, how can this hospital request detailed personal religious information for their scrutiny, making qualitative judgments regarding whose religious beliefs qualify and whose do not?

You've gotten several good responses to this. To summarize, the hospital has public health responsibilities that it is required to enforce, and the hospital may have the right to probe an assertion of religious belief to determine whether it is sincere.

What are we to do in this situation?

Consult a lawyer who practices in your jurisdiction.
posted by alms at 8:35 AM on November 12, 2010 [8 favorites]


"other people, even in her own department (also non-employees), were given exemptions because of religious reasons and reasons of moral conscience. She absolutely must be given the same consideration as people of other faith traditions."

Were they not asked to provide the same information your wife is being asked to provide, in order to get their exemptions?
posted by ook at 8:35 AM on November 12, 2010 [2 favorites]


Were they not asked to provide the same information your wife is being asked to provide, in order to get their exemptions?

Even if they weren't, it may be because they have previously provided the information (I assume the vaccinations is a regular thing), or provided more information on their exemption form or simply belong to a more well-known religion.

Did your wife even specify her religion on her form, or did she just say it was against her religion? You seem to be prepared to go to great lengths (and potentially expense - both financially and emotionally) to avoid simply explaining to the hospital why she can't have the vaccination.
posted by missmagenta at 8:43 AM on November 12, 2010 [6 favorites]


It's interesting that you've not answered the question of whether your wife CAN write an explanation defending her position.

If she's picked religion because it can't be discriminated against, simply as an excuse to not have to get the vaccine for whatever reason -- no, she doesn't deserve that protection. Is it really and truly against her religion?
posted by peanut_mcgillicuty at 8:47 AM on November 12, 2010 [3 favorites]


1) Your legal analysis is deeply suspect. This is probably because you aren't a lawyer.

2) The law probably doesn't actually do what you think it does here. You're actually on pretty shaky ground.

3) Because of 1 and 2, you need to talk to an Ohio employment lawyer.

That is all.
posted by valkyryn at 8:48 AM on November 12, 2010 [9 favorites]


Hospitals are built, physically built, with the prevention of disease communication in mind.
And yet disease communication is a major problem in hospitals. These regulations really weren't invented just to be mean or punitive.
posted by craichead at 8:59 AM on November 12, 2010 [3 favorites]


Nth-ing "you need a lawyer." Also wondering why it feels so unbearably onerous to your wife to state her affiliation with a particular anti-vax religious tradition. Saying that she is the target of religious discrimination when she hasn't identified an affiliation with a particular religious tradition seems a bit off to me.
posted by Sidhedevil at 9:06 AM on November 12, 2010


During last year's flu season, I was a nursing student and had clinical rotations in several different hospitals. Most of them required that I have both a regular flu vaccine and an H1N1 vaccine*. I was certainly not an employee of any of those hospitals - I was paying boatloads of tuition and fees for the privilege of being there - but if I wanted to be in contact with their patients, I had to follow their rules.


*This season, H1N1 is included in the regular flu vaccine.
posted by shiny blue object at 9:11 AM on November 12, 2010 [2 favorites]


More and more hospitals are mandating employees get a flu vaccine or stay home. Cursory search is here.
posted by 6:1 at 9:18 AM on November 12, 2010


As soon as they deny a clearly religious request, than it meets the definition of discrimination. "Bob" was given a religious exemption but "Betty" was not. They both claimed to hold religious beliefs incompatible with flu vaccination, that's discrimination no matter what perspective one has.

It's perfectly reasonable for an organization to require those requesting a specific religious exemption to explain in detail why it is necessary, when that organization has not previously made that particular exemption for an adherent of that particular religion. It is not reasonable to ask us as employers to have comprehensive knowledge of religious requirements, or to assume the expense and liability of researching each religion we encounter.

If "Bob" states that he is of a specific religion, and wants to be exempt from a job requirement, and we already know that religion's tenets require that exemption, then we can ask Bob questions to determine if his belief is sincere, but have no need for further explanation. If "Betty" requests the same exemption based on her belief in a different religion whose tenets we do not know, then we can ask questions both to determine whether her belief is sincere, and why that religion requires that exemption.

The same rule has been applied to each applicant, and the rule is neutral with regard to specific religious beliefs, and therefore there is no discrimination.
posted by nicwolff at 9:26 AM on November 12, 2010 [2 favorites]


My wife filled out the exemption form, writing that she holds a religious belief that prohibits her from receiving the vaccine.

But is this true? Your answers so far have been worded to maintain a distinction between claiming she has a religious belief and actually having one. It sounds like vaccine denialism is the actual motive ('vaccine' in scare quotes? Really?) But even setting that aside, asserting that you have a religious objection is not a get-out-of-obligation free.

Setting all that aside, refusing influenza vaccinations is going to be a problem -- a legitimate, not-able-to-do-the-job problem for someone who is a health worker. I'm skeptical that the other people who were given exemptions are similarly positioned as your wife is, but I'm just some dude on the internet. If you want an answer to this specific legal question (rather than information about why the things you've looked up on the Internet do not support what you think they do)...get a lawyer.
posted by Marty Marx at 9:31 AM on November 12, 2010 [11 favorites]


Also, we're talking about the flu vaccine, not MMR or polio or Hep B. The majority of people in my wife's office have received the flu "vaccine" this year and have also caught the flu already.

Are you saying that your wife received all of the other vaccinations but refuses (on religious grounds) to get the flu vaccine? Is this because she converted to another religion later in life? If so, that seems like something she could definitely explain in that small essay requested of her.

And it seems highly unlikely that the majority of people who have received the flu vaccine have already had the flu. The actual flu virus is quite rare and is not the same thing as a bad cold, strep, or a bad cough.

It seems like you are floundering to provide a simple explanation. Many of us who have experienced actual discrimination on a variety of fronts would be grateful that such an easily accomplished request would take care of the problem*.

"Bob" was given a religious exemption but "Betty" was not. They both claimed to hold religious beliefs incompatible with flu vaccination, that's discrimination no matter what perspective one has.
No, it might mean that Bob fulfilled the explanation request in some other format. If there are others who have been declared exempt from this requirement (as you outline above) then it seems that they will be fairly reasonable in dealing with her explanation.

It doesn't seem terribly far out of bounds for a hospital to request details when one protests "discrimination! I am exempt!" when the repercussions of this exemption could be extremely severe or lethal. Then again, I am not an employment lawyer in your state, so you should consult one or two for a more definitive answer.

*Of course we would prefer/hope/expect not to have to explain in detail but sometimes a small amount of education & explanation takes care of the problem.
posted by barnone at 9:38 AM on November 12, 2010 [4 favorites]


(Side note: It would be far more logical, if our concern is over preventing the spread of communicable disease, for grocery stores to require that all employees be vaccinated than for hospitals to do it. Hospitals are built, physically built, with the prevention of disease communication in mind.)

Hospitals are huge vectors of disease and contamination, for a whole variety of reasons which are outside the scope of this question. They also house the most vulnerable and susceptible people, so extra precautions need to be taken.

From your answers here it seems like this may be a personal belief and not part of a larger religious practice. I am doubtful that on its own, "I disagree with modern medicine and "vaccinations" are hoaxes" would be considered a valid "religious" exemption. If that is indeed what is happening, then you definitely need to talk to your own lawyer(s).
posted by barnone at 9:48 AM on November 12, 2010 [3 favorites]


[folks, you don't need to say lawyer ten times, please do not turn this into a jokey question. OP, you can respond to commenters but please don't thread mod.]
posted by jessamyn (staff) at 10:14 AM on November 12, 2010


For those interested in the specific situation, my wife's credentials don't extend beyond access to the psychiatric in-patient unit; so, she is not coming into contact with patients with compromised immune systems.

The cross-over between psychiatric patients and those who have physical vulnerabilities is HUGE. As in, I cannot believe your wife is a research assistant in an in-patient psychiatric ward and does not know that many, many psychiatric in-patients have other issues going on!

Some of the many people who might have physical issues as well as being treated at an in-patient psychiatric ward: End-of-life issues leading to depression or self-harm or violence, eating disorders leading to physical damage and general illness susceptibility, addictions leading to other ailments and diseases, HIV+, those who had primary physical issues (cancers of dozens of types, transplants, and immune-suppressed folks) that then lead to anxiety or depression, the list goes on and on and on.

Even though your update was an aside, as a way of hand-waving away the risk, I felt it was important that you recognize that the risk is definitely still there even though the patients might not being primarily treated (at that second) for physical ailments. And, oftentimes they are being treated for all things simultaneously.
posted by barnone at 10:16 AM on November 12, 2010 [2 favorites]


Might you be able to tell us what her specific religion is so that we can provide more relevant examples to her specific case?
posted by mikeh at 10:28 AM on November 12, 2010 [1 favorite]


Your wife has not been discriminated against, she has been asked to provide more information. When she provides that information and it is legitimate and then she is turned down, you might have a case. For now, no. All of the other details you've provided are so far irrelevant.
posted by goo at 10:29 AM on November 12, 2010 [7 favorites]


Most responses didn't address the complication that concerns me--that my wife is not employed by the hospital

You obviously don't like the answers you're getting here, the most pertinent one being "get a lawyer," so I am sure that you probably won't like this one either.

I'd say that if the hospital is going to dig in their heels that your wife will not be going in there. Whether that impacts her employment at the university because she is no longer able to accomplish one of her assigned duties is your only employment-related issue here.

You say this:

My wife is employed by a public university in Ohio as a psychiatric research assistant. The university is associated with, but legally distinct from, the nearby hospital. My wife's job requires that she go to the hospital's in-patient psychiatric unit on a nearly daily basis for recruitment purpose

It's not clear from that what the nature of the business between university and hospital is. Is this recruitment to find research subjects? Is there a paid relationship between uni and hospital where one of you is providing services for the other? Is it a mutually-beneficial one?

Regardless, I don't see how you successfully go after the hospital for this given the nature of this deal. This is not about your wife's religious beliefs or anyone else's. The hospital is merely defining a credentialing condition for people who are in regular contact with the patients. It is not necessarily going to be illegal for the hospital to have conditions that might preclude certain religions from working with them any more than having jobs that cannot be performed by people with disabilities is a violation of the ADA.

For employees they have a reasonable accommodation requirement. If she worked for them they could offer her another position where this would be less an issue, though I am not sure even then she'd get our of the obligation to demonstrate that this is a "sincerely held religious belief." For vendors that's not so - you can opt to hire the place that provides 24/7 coverage over the one that's completely shuttered from sundown Friday through first starlight on Saturday, for example.

I'm sure there's some interesting law evolving on this but only a local lawyer is going to know. You can decide if you want to bankroll the next step in the evolution.

Your more direct employment concern is with her work at the university. You don't say, so I'm assuming that her boss is not backing her in refusing to provide this additional information. Perhaps there is some law here you can leverage and you can get the university to provide her a reasonable accommodation by making this outreach someone else's problem and assigning her to something else.
posted by phearlez at 10:46 AM on November 12, 2010 [1 favorite]


[this thread is also absolutely not a referendum on vaccinations, please don't turn it into one, thanks.]
posted by jessamyn (staff) at 10:49 AM on November 12, 2010


(Side note: It would be far more logical, if our concern is over preventing the spread of communicable disease, for grocery stores to require that all employees be vaccinated than for hospitals to do it.[.])

Because if there's any place more logical to bring hundreds of really sick people than Sav-A-Lot, I can't think of it.

N'thing you need a lawyer experienced in employment/civil rights matters.
posted by applemeat at 10:51 AM on November 12, 2010 [2 favorites]


There are many times when the right to practice religion comes into conflict with the ability to carry out the duties of a particular job, and therefore precludes doing that particular job. Muslim women who wear the full veil might be employed by a Parks and Recreation department, but they can't be lifeguards, because their religious beliefs seriously impede their ability to do that job.

I will assume that your wife actually does have religious beliefs that prevent her from getting vaccinated.
posted by bardophile at 11:18 AM on November 12, 2010


You say

other people, even in her own department (also non-employees), were given exemptions because of religious reasons and reasons of moral conscience

Did these people provide the documentation that your wife is being asked for? That seems a rather important point.
posted by It's Never Lurgi at 11:30 AM on November 12, 2010 [2 favorites]


My wife worked for a hospital chaplaincy for a while. The hospital was affiliated with a large research university but was a distinct entity from the university.

And here's how it went there:

The chaplains were expected to have their vaccines. If they did not, they needed to provide a written waiver, mainly for legal ass covering.*

My wife, who did not work with patients but with the chaplains, was NOT required to get the flu shot. However, she was encouraged to do so, mainly for herd immunity, but also because there was a chance she'd encounter sick patients in the halls.

So, the idea that "you work in a hospital, you MUST have your shots" is bunkum. Probably half of most hospital staffs never set foot in any patient areas other than the lobby and cafeterias. The other half need to have their shots or have a good reason not to.

As to the OP, what I'm hearing is the hospital has a standard policy they're trying to enforce on everyone regardless of who you are. And that's not unreasonable. They want to minimize vectors to patients and keep staff from becoming them. As well, a vaccinated staff means the chances of staff being out sick during the most desperately needed time, i.e. when everyone else is sick.

Hospitals are not about being germ-free paradises. They're about treating the sick. And the sick are going to track in all sorts of nasty stuff. Assuming that the hospital is there for disease prevention is asking for trouble. It's like assuming your washing machine is there to keep your clothes from getting dirty.

The answer, OP, is to consult a lawyer. They can tell you whether this is a requirement or not. But I would ask those who got religious exemptions whether they ever had to do the same rigmarole your wife is being asked to do. And maybe they have, but they don't have to anymore because it's on file somewhere. I don't know.

But seriously, what everyone else has said. IANAL, and YANAL.

* - The funny thing is that in this state, you can opt out of childhood vaccines for any reason whatever, and you don't have to do more than check a box. Probably explains why we have measles outbreaks once a year.
posted by dw at 12:47 PM on November 12, 2010


The reason why most of the people replying here aren't supporting your reasons is because your reasons sound fishy.

Why can't the hospital ask for more information? It's true they can't refuse to hire her for religious purposes, but they CAN refuse to hire her if they think she's lying. Your wife's refusal to provide additional information is making HER look like the guilty party. You haven't even given the people here legitimate reasons for your refusal.

Here are your arguments so far:

1) Your wife doesn't need to be vaccinated because she won't be interacting with patients
2) Despite the hospital's policy to require recruiters to get vaccinated, your wife isn't an employee of the hospital, so she shouldn't need to be vaccinated.
3) Your wife's flu vaccinated co-workers got the flu this year, suggesting the vaccine is useless
4) Your wife's co-workers were exempt for religious reasons (however you neglected to mention if they also had to provide additional documentation)
5) In some comments you refer to wife as an employee(of the hospital), and in other comments you assert that she is not. This is a little confusing.
6) Your wife shouldn't have to furnish additional documentation regarding her religion because YOU consider it discriminatory. (How does your wife feel about all this?)

You aren't going to convince the people here and the people at the hospital with these arguments because NONE of them have to do with your wife's religion. In fact, you've put more effort to argue for other reason's than on your wife's religion. I suspect you are more peeved at the fact the hospital requires your wife to get vaccinated more than the fact that getting vaccinated imposes on your wife's religion.

I'm not trying to be a jerk or anything, I'm just stating the facts as I see them. If you really want to continue on this path, then you need to change your arguments.
posted by nikkorizz at 12:59 PM on November 12, 2010 [7 favorites]


Would your wife be willing to get the nasal flu spray? My understanding is that Orthodox Jews and Jehovah's Witnesses are OK with the nasal spray, just not the shot. Don't know about other religions.
posted by miyabo at 2:05 PM on November 12, 2010 [1 favorite]


so, she is not coming into contact with patients with compromised immune systems.

To reiterate: you and your wife have absolutely no way to know this. It doesn't matter that she's not going to be on a cancer ward where everyone's receiving chemo; psychiatric patients can just as easily have illnesses or be on treatment regimens that compromise their immune systems as non-psychiatric patients. (So can other staff members she might come into contact with, who could in turn pass it on to patients.) Being immunocompromised isn't something that comes with a neon sign over your head.
posted by scody at 2:39 PM on November 12, 2010 [1 favorite]


Okay, so I didn't read the whole thread, but I see two options here:

1) You write up the explanation. Sure, the hospital may not be completely in the legal clear by asking for this, but is this a battle you want to fight?

2) You don't write up the explanation, lawyer up, and fight the battle. This will cost you time, at the very least, and possibly money as well (as long as you aren't reimbursed later).

The law appears to be on your side but it may be more trouble than it is worth to fight the battle. How do you want to go about this?
posted by R a c h e l at 3:43 PM on November 12, 2010


I also want to point out that if you do lawyer up, your wife is STILL going to have to produce additional documentation about her religion as evidence. Might as well do it without spending the thousands of dollars.
posted by nikkorizz at 8:32 AM on November 13, 2010


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