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Influenza Mandates and Religious Accommodation: Avoiding Legal Pitfalls

Published online by Cambridge University Press:  01 January 2021

Abstract

Influenza mandates in health care institutions are recommended by professional associations as an effective way to prevent the contraction of influenza by patients from health care workers. Health care institutions with such mandates must operate within civil rights frameworks. A recent set of cases against health care institutions with influenza mandates reveals the liabilities posed by federal law that protects employees from religious discrimination. This article examines this legal framework and draws important lessons from this litigation for health care institutions. We argue counterintuitively that providing religious exemptions from influenza mandates may expose health care institutions to more liability than not providing a formal exemption.

Type
Independent Articles
Copyright
Copyright © American Society of Law, Medicine and Ethics 2018

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References

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On January 18, 2018 the Department of Health and Human Services announced the creation of a New Conscience and Religious Freedom Division in its Office of Civil Rights (available at <https://www.hhs.gov/about/news/2018/01/18/hhs-ocr-announces-new-conscience-and-religious-freedom-division.html> (last visited July 20, 2018); see also Glasser, N.M. and Smith, K., “A Shot in the Arm for Employer Vaccine Requirements for Health Care Workers,” National Law Review, January 29, 2018. The Division's first proposed rulemaking makes it clear that its goal is to tighten protections for workers seeking religious accommodation (Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, 83 Fed. Reg. 3880 (proposed Jan. 26, 2018) (to be codified at 45 C.F.R. pt. 88), available at <https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-01226.pdf> (last visited July 20, 2018)). It is too early to know what, exactly, the department would do, and whether it would affect the situation in relation to influenza mandates. We live this for future examination, both because this is outside the scope of the paper and because it is not yet clear whether it would affect the legal situation, and in which ways. (last visited July 20, 2018)). It is too early to know what, exactly, the department would do, and whether it would affect the situation in relation to influenza mandates. We live this for future examination, both because this is outside the scope of the paper and because it is not yet clear whether it would affect the legal situation, and in which ways.' href=https://scholar.google.com/scholar?q=On+January+18,+2018+the+Department+of+Health+and+Human+Services+announced+the+creation+of+a+New+Conscience+and+Religious+Freedom+Division+in+its+Office+of+Civil+Rights+(available+at++(last+visited+July+20,+2018);+see+also+Glasser,+N.M.+and+Smith,+K.,+“A+Shot+in+the+Arm+for+Employer+Vaccine+Requirements+for+Health+Care+Workers,”+National+Law+Review,+January+29,+2018.+The+Division's+first+proposed+rulemaking+makes+it+clear+that+its+goal+is+to+tighten+protections+for+workers+seeking+religious+accommodation+(Protecting+Statutory+Conscience+Rights+in+Health+Care;+Delegations+of+Authority,+83+Fed.+Reg.+3880+(proposed+Jan.+26,+2018)+(to+be+codified+at+45+C.F.R.+pt.+88),+available+at++(last+visited+July+20,+2018)).+It+is+too+early+to+know+what,+exactly,+the+department+would+do,+and+whether+it+would+affect+the+situation+in+relation+to+influenza+mandates.+We+live+this+for+future+examination,+both+because+this+is+outside+the+scope+of+the+paper+and+because+it+is+not+yet+clear+whether+it+would+affect+the+legal+situation,+and+in+which+ways.>Google Scholar