Can your hospital fire you for exercising your rights?

By John Murphy, MDLinx
Published December 11, 2018

Key Takeaways

Are your inalienable rights subject to hospital policy? Should your employers have the right to tell you to get an injection, even if they have the benefit of others in mind?

Last month, a hospital allegedly fired a nurse for violating its policy that all employees get a flu shot. Despite requesting a waiver for religious reasons, the nurse was fired anyway, according to the St. Louis Post-Dispatch. Were the nurse’s constitutional rights violated? Or did the hospital’s right to protect its patients come first?

Last year, St. Anthony’s Medical Center, St. Louis, MO, had reportedly granted the unidentified nurse a religious exemption from the annual flu shot. But also last year, St. Anthony’s was acquired by Mercy, one of the nation’s largest hospital systems, with 44,000 employees in four states.

Mercy requires its workers to be vaccinated against the flu as a condition of employment. This year, employees submitted about 170 requests for medical or religious exemptions for the flu shot, the majority of which Mercy accepted, according to a statement the company released to KMOV News.

“The point of our flu vaccination policy is simple: protection against the flu virus saves lives, especially those of our most vulnerable patients,” Mercy said in its statement. “In health care, we must adopt national best practices for those we serve.”

The company also said that employees who weren’t given exemptions “will not be permitted to remain employed without receiving a vaccination.”

As of late November, the hospital had terminated at least one employee for violating its flu vaccination policy, a hospital spokeswoman told the Post-Dispatch.

More cases of mandatory shots

This is not the first case of a hospital worker being fired over a flu shot.

In November 2017, Minnesota-based Essentia Health fired 69 employees who refused to get the flu vaccine. The company, which employs about 14,000 workers throughout four states, reached a 99.5% compliance rate last year due to its mandatory vaccination policy.

In 2012, Cincinnati-based TriHealth fired 150 employees for not getting the flu shot.

According to the Centers for Disease Control and Prevention, eight states require hospitals to make sure that their health-care workers get the flu shot: California, Colorado, Massachusetts, Nebraska, New Hampshire, New York, Rhode Island, and Tennessee. Hospitals in these states may allow exceptions for religious or medical reasons in some cases, but at their own discretion.

Yet the issue is far from settled. In late September 2018, the US Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Saint Thomas Health (STH) for demanding that a worker at its Saint Thomas Rutherford Hospital, Murfreesboro, TN, get a flu shot despite his religious beliefs.

According to the EEOC’s lawsuit, STH allowed a service employee (not a health-care worker) to wear a protective mask instead of getting a flu shot in 2013 and 2014 as a religious exemption. But in 2015, STH denied his request to wear a mask. When the employee refused the flu shot, STH told him that he could not work at the hospital.

“For several years, STH accommodated the employee’s religious belief. Then, STH refused to accommodate his religious belief. An employer should not force an employee to choose between employment and his religious belief unless doing so would cause an undue hardship to the employer,” said Delner Franklin-Thomas, director of the EEOC’s Memphis District Office.

The case is now pending in the Tennessee Middle District Court.

Compulsory vaccines are largely legal

“Since mandatory flu vaccine programs have been a hotbed for litigation (and a source for the viral spread of misinformation), healthcare providers may want to proceed with caution and make sure their processes and procedures comply with applicable discrimination laws,” wrote employment attorneys in a National Law Review article.

For hospital employees, “it appears that there is no general constitutional right that would prohibit someone from being compelled to be vaccinated for influenza,” an attorney concluded in a separate National Law Review article. “However, the requirement must still be implemented and enforced in accordance with other rights of employees or vendors. For example, if the requirement ran afoul of a contract with the hospital or an individual’s disability or religious belief, courts would be unlikely to enforce it.”

How many US health-care workers get the flu shot?

What are flu vaccination rates like among America’s health-care workers? According to statistics, more than 1 in 5 skip the flu shot.

During the 2017-2018 flu season:

  • 21.6 of health-care personnel did not receive the influenza vaccine.
  • 91.9% of health-care personnel in hospitals were vaccinated, followed by 75.1% in ambulatory care, 74.9% in other clinical settings, and 67.4% in long-term care settings.
  • 96.1% of physicians got the flu shot, as well as 92.2% of pharmacists, 90.5% of nurses, 87.8% of nurse practitioners and physician assistants, 80.9% of other clinical health-care personnel, 71.1% assistants and aides, and 72.8% of non-clinical health-care personnel.
  • 44.1% of health-care personnel overall reported a requirement to be vaccinated.
  • 94.8% of health-care personnel in settings with mandatory vaccination got the flu shot compared with 47.6% of those in settings that did not require vaccination.

Influenza Vaccination Coverage Among Health Care Personnel—United States, 2017-18 Influenza Season. Morbidity and Mortality Weekly Report.

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