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NJ Appeals Court Rules on Employer’s Ability to Require Flu Shot


June 16, 2014
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After suffering through one of the worst flu seasons in several years, New Jersey employers understandably want to take every step possible to keep their workers healthy. However, to avoid legal risks, businesses should generally encourage vaccination rather than require it. Courts have traditionally held that if employees’ religious beliefs prevent them from taking vaccines and other medications, they cannot be terminated for refusing the flu shot. In a recent decision, a New Jersey appeals court ruled that an employer’s failure to also accept secular, non-religious reasons for refusing vaccination ran afoul of the First Amendment.
The Facts of the Case
The plaintiff, June G. Valent, worked as a registered nurse at Hackettstown Community Hospital (HCH). In September 2010, Adventist Health Care, Inc., the corporate owners of HCH, issued a policy in its “Corporate Policy Manual” titled “Health Care Worker Flu Prevention Plan.” It required employees to be vaccinated “unless there [was] a documented medical or religious exemption.” Valent refused to be vaccinated for the flu. In communicating her refusal, Valent did not seek an exemption based on medical or religious reasons. She did agree, however, to wear a mask during flu season, as specifically authorized by the employer’s flu policy. Nonetheless, HCH terminated her employment. After she was denied unemployment compensation benefits on the basis of work misconduct, Valent appealed. The Department of Labor’s Board of Review upheld the decision after concluding that “the employer’s policy requiring employees to be vaccinated was not unreasonable.”
The Court’s Decision
The Appellate Division of the New Jersey Superior Court disagreed. It concluded that the employer did not prove Valent committed misconduct by refusing to submit to the flu vaccination policy for purely secular reasons. It further held that the hospital violated the First Amendment by “discriminat[ing] against an employee’s right to refuse to be vaccinated based only on secular reasons.” “The Board’s decision upholding appellant’s termination unconstitutionally discriminated against her freedom of expression by improperly endorsing the employer’s religion-based exemption to the flu vaccination policy and rejecting the secular choice proffered by appellant,” the appeals court explained. The upshot: employees can now refuse to abide by what otherwise appears to be a logical and appropriate employment directive and requirement for any reason!  While there is consistent logic to the court’s opinion, where can a reasonable line be drawn? Is it reasonable for an employee to expose patients with possibly compromised immune systems to the perils of flu just because the employee doesn’t believe in having a flu shot (whatever the reason may be)?  What do you think: is Justice truly blind (or even worse)? The case is Valent v. Board of Review. If you have any questions about this case or would like to discuss your company’s vaccination policies, please contact me or the Scarinci Hollenbeck Labor and Employment attorney with whom you work.