Vaccine Exemptions: How Hospitals Violate Workers’ Rights

Vaccine Exemptions: How Hospitals Violate Workers’ Rights














by Alan Phillips, J.D. Attorney and Counselor at Law

Following swine flu emergency declarations in 11 states, Washington
D.C., American Samoa and the entire U.S. in 2009, hospitals around the
country began implementing new flu vaccine mandates for their employees.
Healthcare workers who worked for decades without getting vaccinated
were suddenly required to choose between getting vaccinated and getting
fired. Some observed that it was the workers vaccinated in prior years
that most often took sick leave each winter to recover from flu-like
illnesses. Nevertheless, since the so-called pandemic,[1] hospitals have
increasingly been adding vaccine requirements. And the pro-vaccine
push hasn’t stopped there; in more recent months, entirely new
categories of employees have been facing new vaccine requirements
including airline employees, pharmacists, and hospital sales reps.
Ultimately, all workers and adults may be required to get vaccines as
the rapidly advancing vaccine pharmaceutical agenda continues to roll
forward ignoring science and liberty.

Presently, immunization laws and policies for healthcare workers vary
widely from state to state and from hospital to hospital. According to
the CDC, some states have statutory vaccination requirements for
healthcare employees, some have only recommendations, some have
requirements and recommendations, and about 20 have no requirements or
recommendation at all, leaving the matter entirely to hospital
policy.[2] Of the 12 states that require one or more vaccines, only six
offer a medical exemption, two offer medical and religious (Maryland
and New Hampshire), and one offers medical, religious and philosophical
(Maine). So, where employer-required vaccines are concerned, most
healthcare workers are dealing with hospital policy only or a mixture of
policy and state law. However, state exemption laws for healthcare
workers may only apply to state-mandated vaccines, so even if there is
an exemption law in your state, it may not help you avoid
hospital-required vaccines.

Where state exemption laws are non-existent or don’t apply, hospital
employees are left with indirect legal arguments to support the right to
legally refuse vaccines in the workplace without penalty. Here’s an
overview of one approach:
Title VII of the Civil Rights Act of 1964 prohibits discrimination of
employees covered by the Act on the basis of race, color, religion, sex
or national origin.[3] With regard to religion, employers must
reasonably accommodate their employees’ religious beliefs unless it
would cause an undue hardship (what potentially qualifies for a
religious exemption is quite broad, but there are also legal pitfalls to
avoid [4]). However, since Title VII does not specifically mention
healthcare employees and vaccines, we have to look to legal precedent to
get a definitive legal answer to the question of whether or not—and if
so, how—Title VII applies to this specific situation. Unfortunately,
there appears to be no legal precedent on this specific situation. So,
we must assess the strength of the legal arguments for and against an
employee’s right to refuse vaccines in the workplace for religious
reasons under Title VII. For starters, don’t worry if you’re not a
member of a church with tenets opposed to immunizations. First Amendment
protection of the “free exercise” of religion is broad—virtually
anyone who is not an atheist can potentially qualify for a vaccine
religious exemption. There are legal pitfalls to avoid, however, so
those serious about avoiding vaccines in the workplace for religious
reasons should consult an attorney experienced with vaccine exemptions
and waivers.

When assessing whether or not hospitals can “reasonably accommodate”
their employees’ religious beliefs, we could examine the herd immunity
theory (all are protected if most are immune) vs. the heightened
infectious disease concerns in hospitals, but since there are hospitals
around the country with Title VII policies allowing employees to refuse
vaccines for religious reasons, the hospital environment may be a
secondary concern. That is, if there are hospitals around the country
already accommodating employees’ religious objections to immunizations,
then clearly hospitals generally can do so. In fact, the federal
government recognizes the right to a workers’ Title VII exemption for
pandemic vaccines during a declared pandemic.[5] So, if a hospital
refuses to accommodate their employees’ religious beliefs by refusing
all vaccine religious exemptions, they are confessing, in effect, that
infectious disease is a greater concern for them than for other
hospitals that do allow Title VII exemptions. Of course, few if any
hospitals would argue that as their reason for rejecting of religious
exemptions generally. But some do reject all religious exemptions, so
perhaps there’s another reason. (Did I just hear someone say: “Follow
the money”?)

Sadly, there’s a more insidious aspect to this arena. The reality is,
many hospital employees are “at will” employees. They can’t be fired
for an unlawful reason, but they can be fired for “no reason” at any
time. So, if a healthcare worker is denied an exemption and successfully
sues their employer under Title VII, they may get their job back, but
most could also be terminated shortly thereafter for “no reason.” So,
the bottom line is that some hospitals get away with violating their
employees’ rights, because they can, and not because they have a
good-faith legal argument favoring their pro-vaccine position. Those
employees whose employer takes a hard line “so sue me” position may not
have much of a choice; they can either get the vaccines, or start a
formal proceeding by filing a complaint with the EEOC (Equal Employment
Opportunity Commission).[6]

Fortunately for now, the majority of hospitals appear to recognize a
Title VII right for their employees to refuse vaccines for religious
reasons, and most of my healthcare worker clients have been successful
in refusing vaccines without losing their jobs. As long as you avoid the
legal pitfalls and your employer doesn’t have a “no religious
exemptions” policy, there’s a good chance of success. If your beliefs
qualify under the law and you are rejected, then you have a good chance
of succeeding with an EEOC complaint or lawsuit if that is ultimately
needed.

If you are a healthcare worker or other employee being required to get
vaccines against your will, the first step is to find out what your
employer’s exemption policy is. It’s wise not to talk about what your
religion is or what your religious beliefs are, or to submit anything
about your religious beliefs in writing before finding out what their
policy is and precisely what beliefs do and don’t qualify, legally, for a
religious exemption. Unfortunately, this is an arena where a common
sense approach can cost you the exemption. What many people think should
qualify as a religious objection often doesn’t. For example, copied
belief statements can be rejected as insincere, so copying from
anti-vaccine websites is risky. These websites mean well, and I mean no
disrespect, but they don’t understand the law. People have needlessly
lost exemption rights by relying on anti-vaccine websites in the
exercise of vaccine religious exemptions.[7]

If your employer has an overly strict policy—e.g., requires membership
in an organized religion or support from a religious leader—they are,
in my professional opinion, overstepping their legal boundaries. You
may need an attorney to explain your rights to your employer, and to
cite the legal precedent that supports the position that you have the
right to refuse without having the support of a religious leader or
belonging to any particular religious organization. If they have a
lenient policy and ask only for a statement of your beliefs, that’s
better, but you should still consider consulting an attorney to avoid
the legal pitfalls, as this is one arena where your beliefs are likely
to be closely scrutinized for flaws that would cause them to reject
you.

Disturbingly, some hospitals have even rejected a medical doctor’s
recommendation that an employee not be vaccinated. The best long-term
solution, then, may be for all concerned to become legislatively active,
for us to educate our representatives about the true risks and
failings of vaccines and the many better and safer means of addressing
infectious disease concerns. We need new laws that allow informed
choice, require transparency of all conflicts of interest, and that
require prosecution of documented corruption. I’m happy to help
activists anywhere in the U.S. with any pro-informed-choice vaccine
legislative initiatives. For a list of some of the legislative projects
I’ve worked on so far, see Vaccine Rights: Legislative Projects: http://www.vaccinerights.com/legislativeprojects.html. I’m also available to assist individuals with understanding and exercising their rights wherever vaccines are concerned.



Alan Phillips, J.D. is a nationally recognized legal expert
on vaccine rights issues. He helps clients, activists and other
attorneys nationally with vaccine rights issues and legislative
initiatives. Learn more at www.vaccinerights.com
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[1] Which we now know was a fake pandemic. For documented details, see the Swine Flu Review at http://pandemicresponseproject.com/pdf/SwineFluReview.pdf.
[2] http://www2a.cdc.gov/nip/StateVaccApp/statevaccsApp/AdministrationbyPati...
[3] http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964#Title_VII
[4] Federal legal precedent tells us that the First Amendment requires
only a belief opposed to immunizations that is religious in nature and
sincerely held.
[5] May an employer covered by the ADA and Title VII of the Civil
Rights Act of 1964 compel all of it employees to take the influenza
vaccine regardless of their medical conditions or their religious
beliefs during a pandemic? http://answers.flu.gov/questions/4766
[6] If an employer rejects an employee’s request for religious
accommodation, the employee must first file a complaint with the EEOC
before they can sue the employer. See U.S. Equal Employment Opportunity
Commission, Filing a Charge of Discrimination, http://www.eeoc.gov/employees/charge.cfm.
[7] Some people have been successful with school exemptions by copying
from anti-vaccine websites, probably because some state school
exemption laws do not allow the state to scrutinize exemption claims.
But in those states and federal contexts where beliefs can be
scrutinized, copying is risky, because it can cost you the exemption.



Source:-
http://www.greenmedinfo.com/blog/vaccine-exemptions-how-hospitals-violate-workers%E2%80%99-rights