Now that our Preliminary Injunction motion to stop the UC’s Flu Mandate has been denied, some have asked what’s next.

Some have asked about an appeal. Given how long it takes to get an appellate court to review a denial of preliminary injunction (technically it’s not an appeal but a writ of mandate), an appeal/writ, even if successful, would not provide a timely remedy to those of you who have to be on campus now or soon. So, because I’m a practical guy, and the UC community needs a practical solution like now, I’m not going to even think about a writ right now.

Technically, the lawsuit is going to continue, but there wouldn’t be a trial until after the flu season, so for the same reason as above, let’s put aside consideration of continuing litigating the case for now because it doesn’t provide an immediate solution.

What about a medical exemption?

The UC will be using the list of contraindication and precautions under the ACIP (Advisory Committee on Immunization Practices) as the criteria for granting them. They are very restrictive basically, a (documented) severe allergic reaction after a previous flu shot, or if you currently have a moderate or severe acute illness, and that’s it.  Having an autoimmune condition or a family history of something is not going to do it.

If you have some kind of disability, that might do it, but that won’t affect many people.

So it comes down to a religious accommodation:

Let’s get into the weeds of what that is, because it is broader than many of you might think:

Let’s go right to the source which is the EEOC which enforces Title VII which deals with employment discrimination:

Here is part of an EEOC formal discussion letter:  It is long, but it will give you a good background on how federal law looks at the issues involving religious accommodations. You should read this very carefully (and especially the highlighted portions):

“13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, 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 (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

The Title VII principles referenced in these questions and answers would govern the general questions you have raised regarding whether     Title VII requires hospitals to accommodate their employees’ religious objections to receiving influenza and other vaccines, and under what circumstances such accommodation would not be required. Facts relevant to undue hardship in this context would presumably include, among other things, the assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control, and potentially the number of employees who actually request an accommodation.

Scope of Covered Religious Beliefs and Employer Inquiries

In your letter, you inquired about what religious beliefs potentially are entitled to accommodation under Title VII, provided that a reasonable accommodation could be provided without undue hardship. The Commission has addressed these matters extensively in the Guidelines on Discrimination Because of Religion, 29 C.F.R. Part 1605, http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1605.xml, and the Compliance Manual, Section 12: Religious Discrimination (2008), religion.pdf . The Commission and courts have consistently found that Title VII defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Commission Guidelines, 29 C.F.R. § 1605.1 (“The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”); Compliance Manual at 6-12; Welsh v. United States, 398 U.S. 333, 343 (1970) (petitioner’s beliefs were religious in nature although the church to which he belonged did not teach those beliefs); accord Africa v. Commonwealth of Pa., 662 F.2d 1025, 1032-33 (3d Cir.1981); Bushouse v. Local Union 2209, United Auto., Aerospace & Agric. Implement Workers of Am., 164 F. Supp. 2d 1066, 1076 n.15 (N.D. Ind. 2001) (“Title VII’s intention is to provide protection and accommodation for a broad spectrum of religious practices and belief not merely those beliefs based upon organized or recognized teachings of a particular sect”).

The Compliance Manual further explains that Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs. Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII.

Therefore, whether a practice is religious depends on the employee’s motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that “religious” beliefs would be held to incorporate secular philosophical opposition to vaccination.

You also asked what steps, if any, hospitals may take to scrutinize a requesting employee’s beliefs to determine whether the employee’s asserted need for accommodation is based on a sincerely held religious belief, and whether hospitals require the requestor to have the support of a religious official. These issues are addressed in great detail, with accompanying examples, in the Compliance Manual, which in pertinent part explains:

Because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.

*    *    *

When an employer requests additional information, employees should provide information that addresses the employer’s reasonable doubts. That information need not, however, take any specific form. For example, written materials or the employee’s own first-hand explanation may be sufficient to alleviate the employer’s doubts about the sincerity or religious nature of the employee’s professed belief such that third-party verification is unnecessary. Further, since idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is needed, it does not have to come from a church official or member, but rather could be provided by others who are aware of the employee’s religious practice or belief.

An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation. By the same token, employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment.

It also is important to remember that even if an employer concludes that an individual’s professed belief is sincerely held and religious, it is only required to grant those requests for accommodation that do not pose an undue hardship on the conduct of its business.

Compliance Manual at pages 12-14, 48-51 (footnotes omitted). See, e.g., Bushouse, 164 F. Supp. 2d 1066, 1078 & n.18 (court held that union’s refusal to provide accommodation unless employee produced independent corroboration that his accommodation request was motivated by a sincerely held religious belief did not violate Title VII’s religious accommodation provision, but cautioned that the holding was limited to “the facts and circumstances of the present case” and that “the inquiry [into sincerity] and scope of that inquiry will necessarily vary based upon the individual requesting corroboration and the facts and circumstances of the request”).

You further inquired whether hospitals may refuse to accommodate an employee’s religious objections to immunizations if, in addition to presenting religious objections to immunizations, the employee submits non-religious, anti-vaccine information. A related matter you have raised is whether a healthcare employee’s receipt of vaccines in the past, in and of itself, relieves an employer of the obligation to accommodate the employee’s present request for religious accommodation. As the Commission has explained:

Like the “religious” nature of a belief or practice, the “sincerity” of an employee’s stated religious belief is usually not in dispute. Nevertheless, there are some circumstances in which an employer may assert as a defense that it was not required to provide accommodation because the employee’s asserted religious belief was not sincerely held. Factors that – either alone or in combination – might undermine an employee’s assertion that he sincerely holds the religious belief at issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. However, none of these factors is dispositive. For example, although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time, and therefore an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held. An employer also should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion.

Compliance Manual at 13-14 (footnotes omitted). See, e.g., EEOC v. Union Independiente De La Autoridad De Acueductos, 279 F.3d 49, 56-57 & n.8 (1st Cir. 2002) (evidence that Seventh-day Adventist employee had acted in ways inconsistent with the tenets of his religion, for example that he worked five days a week rather than the required six, had lied on an employment application, and took an oath before a notary upon becoming a public employee, can be relevant to the evaluation of sincerity but is not dispositive; the fact that the alleged conflict between plaintiff’s beliefs and union membership kept changing might call into question the sincerity of the beliefs or “might simply reflect an evolution in plaintiff’s religious views toward a more steadfast opposition to union membership”); Hansard v. Johns-Manville Prods. Corp., 1973 WL 129 (E.D. Tex. Feb. 16, 1973) (employee’s contention that he objected to Sunday work for religious reasons was undermined by his very recent history of Sunday work); see also Hussein v. Waldorf-Astoria, 134 F. Supp. 2d 591 (S.D.N.Y. 2001) (employer had a good faith basis to doubt sincerity of employee’s professed religious need to wear a beard because he had not worn a beard at any time in his fourteen years of employment, had never mentioned his religious beliefs to anyone at the hotel, and simply showed up for work one night and asked for an on-the-spot exception to the no-beard policy), aff’d, 2002 WL 390437 (2d Cir. Mar. 13, 2002) (unpublished); EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997) (en banc) (Jewish employee proved her request for leave to observe Yom Kippur was based on a sincerely held religious belief even though she had never in her prior eight-year tenure sought leave from work for a religious observance, and conceded that she generally was not a very religious person; the evidence showed that certain events in her life, including the birth of her son and the death of her father, had strengthened her religious beliefs over the years); Cooper v. Oak Rubber Co., 15 F.3d 1375 (6th Cir. 1994) (that employee had worked the Friday night shift at plant for approximately seven months after her baptism did not establish that she did not hold sincere religious belief against working on Saturdays, considering that 17 months intervened before employee was next required to work on Saturday, and employee’s undisputed testimony was that her faith and commitment to her religion grew during this time); EEOC v. IBP, Inc., 824 F. Supp. 147 (C.D. Ill. 1993) (Seventh-day Adventist employee’s previous absence of faith and subsequent loss of faith did not prove that his religious beliefs were insincere at the time that he refused to work on the Sabbath).

Measures Required in Lieu of Vaccination

You also specifically asked whether an employer that grants a religious accommodation excusing a healthcare worker from a mandatory vaccination may impose additional infection control practices on the worker as a result, such as wearing a mask. While an employer covered by Title VII may not impose such practices for discriminatory or retaliatory reasons, it may do so for legitimate, non-discriminatory and non-retaliatory reasons. Whether the employer’s motivation for imposing additional infection control measures was discriminatory or retaliatory would turn on the facts of a given case.

As you may be aware, specific information is available from the Centers for Disease Control (CDC), at http://www.cdc.gov/flu/healthcareworkers.htm, addressing healthcare workers and vaccination, and the government’s recommendations for particular types of workplaces and other public settings are modified depending upon the assessment of the public risk at a given time. The U.S. Department of Health and Human Services (HHS) has also been actively considering the issue of vaccination for healthcare workers, and what measures to recommend for implementation in hospitals and other settings, and information about these deliberations is available at http://www.hhs.gov/ash/initiatives/hai/tier2_flu.html and related pages on the HHS website. Additional government information and advice for employers, updated on a continuing basis given the assessment of risk at a given time, can be obtained at www.pandemicflu.gov. ” (emphasis added)

END OF QUOTE

here is the link to the entire letter.

https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-250

The above should give you all how the EEOC looks at these things, and how the federal agency will review the UC’s conduct if they deny your request for a religious accommodation.

The important point is that you don’t have to be part of an organized religion to have the type of belief which qualifies for a religious accommodation.  One thing I am clear about from the FAQ is that you can’t get a religious accommodation because you’re an anti-vaxxer or vaccine concerned.

I don’t think there is a time limit or deadline for applying for a religious accommodation. I have heard that some UC web sites no longer show the religious accommodation form. If so, then request the form from your HR department, and do so in writing. If the response is that it is no longer available, then that might be enough to file a complaint with EEOC, (and I will explain that in another post).

So, right now the only practical way to avoid the UC flu mandate is to seek religious accommodation. The good news is that based on the September 29th revised executive order, it is available to students as well as employees and faculty. (And they obviously did that because of our injunction lawsuit and the preliminary injunction motion, and that shows as big and powerful as the UC is, they can be moved.)

So fill out the request and send it in. If the form is not up on your campus’s web site, ask HR, your supervisor (or both)  or dean of students, or anyone else you can think of for the form. If they tell you it’s not available anymore, and that the time to submit the form has passed, get ready to file a complaint with EEOC (for employees or faculty). For denials to students, we’re probably talking about round two of litigation, this time maybe a class action.

The fight continues, but now, it will require your direct involvement and interaction with the administration.

Rick Jaffe, Esq.