Tag Archives: Employment Law

Hintze on Mandatory Influenza Vaccinations for Healthcare Employees and Religious Exemptions

Drew D. Hintze (Martinez Law Group, P.C., Denver) has posted Mandatory Influenza Vaccination Policies in Colorado: Are Healthcare Employees with Religious Conflicts Exempt? The abstract follows.

Colorado is attempting to reduce the spread of influenza in healthcare facilities from healthcare personnel to patients.  Colorado’s Department of Public Health and Environment (“CDPHE”) and the Colorado Hospital Association (“CHA”) have each approved initiatives endorsing the need for healthcare organizations in the state to develop influenza vaccination policies to increase vaccination coverage among healthcare personnel.  As mandatory influenza vaccinations become more commonplace in healthcare organizations nationwide, concerns have arisen regarding the circumstances in which a healthcare worker may seek an exemption to an employer-mandated immunization.  This article discusses mandatory influenza vaccination policies in Colorado and the legal issues healthcare employers should consider when an employee seeks an exemption from an influenza vaccination based on religious beliefs.

Working on Sunday

Here’s an update to last week’s post about a movement to curtail Sunday shopping in Europe. In that post, I speculated that allowing stores to open Sundays might create pressure for observant Christian employees: skip church and report to work, or lose your job. It turns out this concern isn’t speculative. In England, a High Court judge recently ruled that employers may discipline observant Christians who refuse to work Sundays.

The case involves Ms. Celestina Mba, who worked as a caregiver in a government-run children’s center. A devout Baptist, she goes to church every Sunday and does not wish to work on that day. When her employer — a government agency, note, in a state with an established church — pressured her to work Sundays, she quit and sued for employment discrimination. She lost at trial and, last month, in the High Court as well.

Why did she lose? English law allows employers to require employees to work Sundays if there is “a legitimate business need.” According to press reports, though, the High Court did not rely on that principle in Ms. Mba’s case. Rather, the court reasoned that Christianity did not require Sabbath observance in the first place. Plenty of Christians work Sundays, the court noted; only a few, like Ms. Mba, see it as a problem. As a result, religious freedom was not seriously implicated by requiring her to work. Employers, the court reasoned, do not need to accommodate outliers like Ms. Mba.

Now, this reasoning is very odd. The fact that some of those Christians who work Sundays might be doing so because they have to — that is, because otherwise they would lose their jobs — apparently did not occur to the court. Moreover, the fact that many Christians see no problem with working Sundays doesn’t mean that other Christians cannot have a legitimate religious objection. Courts don’t usually require that practices be “mainstream” within a religion in order to receive legal protection. Besides, attending church on Sundays is hardly an esoteric practice in Christianity. Many Christians are known to do it — though not in today’s England, I guess.

Something strange is happening in the UK. It’s not just Ms. Mba’s case. In a separate case currently pending at the European Court of Human Rights, the British government has taken the position that employers may fire Christian employees who wear crosses to work. Again, the argument is that religious freedom doesn’t apply in such situations. Why? Because wearing a cross is not “generally recognized” by Christians as a religious requirement: most Christians don’t wear crosses, so individual Christians don’t have a right to wear them. But where’s the sense in that? Most Christians don’t carry Bibles around with them, either. Does that mean forbidding Christians from carrying Bibles would not implicate religious freedom?

We’ll see in the next several months what the European Court makes of all this. I wonder whether Ms. Mba will apply to that court for relief in her case. I note she is represented by British religious rights lawyer Paul Diamond, who argued the cross-wearing case at the European Court last fall. You can watch the argument here.

Colombo on the Naked Private Square

Ronald J. Colombo  (Hofstra U. School of Law) has posted The Naked Private Square. The abstract follows.

In the latter half of the twentieth century, America witnessed the construction of a “wall of separation” between religion and the public square. What had once been commonplace (such as prayer in public schools, and religious symbols on public property) had suddenly become verboten. This phenomenon is well known and has been well studied.

Less well known (and less well studied) has been the parallel phenomenon of religion’s expulsion from the private square. Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.

Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.

Moran: Islamic Law, Religious Freedom, and ERISA-Backed Pension Plans

Beverly I. Moran, tax-law scholar and Professor of Law at Vanderbilt Law School, has posted Islamic Law Meets Erisa:  How America’s Private Pension System Unintentionally Discriminates Against Muslims and What to Do About It.  The article explores the position of Muslim employees, who can be disadvantaged when their religious beliefs prevent them from taking retirement funds generated through interest schemes; the challenge to, and obligations of, employers in accommodating these employees’ beliefs; and related Title VII jurisprudence.  The author’s abstract, describing this complicated and troubling legal landscape, follows the jump. Continue reading