Common sense tells us that it is a good idea for certain companies – hospitals, physicians’ offices, nursing homes, day care centers, and more, to take appropriate measures to safeguard the health of both the workforce and any population it serves.  By this logic, a policy requiring healthcare employees to receive flu shots seems reasonably calculated to protect employees and patrons, as well as to control the spread of communicable disease.  But, is it legal? 

The answer is not clear cut.  A policy that encourages employees to be vaccinated is clearly enforceable.  One that mandates vaccination, however, may pose problems with enforcement, some of which may be surprising.  Take, for example, the case of Chenzira v. Cincinnati Children’s Hospital Medical Center, currently pending in federal court in Ohio.  The employer, Cincinnati Children’s Hospital Medical Center, required its employees to be vaccinated for the flu.  An employee, Sakile S. Chenzira, had worked for the Hospital as a customer service representative for more than a decade.  The Hospital fired Chenzira when she refused to be vaccinated against the flu because she is vegan (she chooses not to consume animal products like eggs, which are used to make the flu vaccine).  Chenzira sued the hospital for discriminating against her on the basis of her religion, veganism.  The Hospital filed a motion to dismiss based in part on the argument that veganism is not a religion – and lost, meaning the lawsuit will continue to full litigation.

Wait a minute, you might say.  When did veganism become a religion?  As the Hospital argued, veganism is no more than a “dietary preference” or “social philosophy,” right?

It may surprise many HR professionals to know that the EEOC defines “religious practices” to include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views.”  As the Hospital found out, neither common sense nor common practice provide a good guide for addressing an unusual request for a religious exemption.

HR professionals know that employers may not discriminate against an individual on the basis of his or her religion and must accommodate an employee’s sincerely-held religious belief, unless doing so would pose an undue hardship to the employer.  The tricky part is determining whether an unusual request qualifies for a potential exemption.  In the Chenzira case, the court emphasized that “whether or not a practice or belief is religious is not an issue . . . religious practices . . . include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views.”

The Chenzira court was also careful not to decide the question of whether Chenzira’s veganism is a religion.  Instead, the court clarified that it merely found it “plausible that [she]could subscribe to veganism with a sincerity equating that of traditional religious views,” and that this plausibility made dismissal inappropriate.  The court was also clear that its ruling did not address the validity of the Hospital’s justification for Chenzira’s termination, ensuring the safety of patients, nor did it address the risk Chenzira’s refusal to be vaccinated might pose to patients or fellow employees.  Whether accommodating Chenzira’s refusal to take a flu shot placed an undue burden on the Hospital remains unanswered, but will be a fact-intensive inquiry made after the parties engage in what will likely be a lengthy, costly discovery process.

This case does not change the law, but it readily illustrates a common pitfall that it is important to avoid.  A company, and its HR staff, cannot uncritically decide that a certain practice is or is not a “true religion,” or whether a particular employee holds a “true belief” with regard to his or her professed religion or “moral or ethical beliefs as to what is right and wrong.”  The courts aren’t touching that question with a ten foot pole – and neither should you.