Unemployment Misconduct and the Constitution: The Flu Shot Saga
By Anne-Marie L. Storey, Esq.
An interesting decision has been issued by a New Jersey court of appeals that addresses an employer’s policy about mandatory flu shots and an employee’s refusal to submit to such a shot.
In the case, the employee was a nurse at a hospital. The hospital instituted a company policy that all employees must have a flu vaccination. The purpose of the policy was to “enhance” vaccination rates and prevent the spread of the flu.
The policy exempted employees who objected on religious or medical grounds as long as they produced a note from a religious leader or a doctor to that effect. The policy also said that if an employee met the exemption, he or she could wear a face mask during the flu season instead.
The employee at issue refused to have the shot but agreed to wear the face mask. She did not produce the requested note confirming the refusal was for religious or medical reasons. Her reason for not having the shot was based on her own personal health convictions.
She was terminated for refusing the shot for reasons other than religious or medical. She applied for unemployment benefits and was denied on the grounds that she was terminated for insubordination. Initially, her claim for benefits was granted on the basis that her refusal was not misconduct. This finding was reversed on appeal. On further appeal, the Superior Court reinstated her benefits. The court found that she did not willfully disregard or neglect the employer, as she offered to comply with the offered alternative.
The fact that this alternative was only available to employees who objected to the shot on medical or religious grounds was not a sufficient basis to find misconduct; the court held that the decision to deny benefits “unconstitutionally violated [her] freedom of expression by endorsing the employer’s religion-based exemption to its flu vaccination policy.”
Further, the court found that the employer failed to produce evidence showing that the refusal to comply with the policy for “purely secular reasons” adversely impacted the hospital or impacted her ability to perform her job. Thus, her refusal did not constitute misconduct.
Aside from all of the other issues raised by this decision, including whether it is overreaching in its constitutional basis, there are still some worthwhile lessons for employers. Among other things, it is a good reminder that there are a variety of reasons presented for refusing flu shots or other mandatory “treatment” and each refusal must be assessed individually to determine whether it constitutes a request for accommodation of religious or other beliefs or other good faith exemption.
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