PHILADELPHIA - An August decision by a Philadelphia judge affirmed a Mercy Fitzgerald Hospital's right to fire an employee who refused a flu shot as it was determined the employee's denial wasn't based on religion.

Meanwhile, the Equal Employment Opportunity Commission has alleged a health care provider in Massachusetts (Baystate Medical Center) has violated federal law by firing an employee who refused to receive a flu shot, wear a mask or arrange to take leave.

A complicated, murky and controversial area of the law, legal complaints in which employees assert employers violated their constitutional right to religious freedom are increasing, attorney Kevin Troutman, a Fisher Phillips partner in Houston, told the Pennsylvania Record.

What sets these cases apart is the defendants' need to protect its patients.

¨The need to protect the health of patients and employees in a hospital is overwhelming,¨ Troutman said.

¨Exposing them to a flu virus would do them harm, but they [hospital management] cannot run roughshod over employees' religious beliefs in instituting policies to protect their health and safety. Hospital administrators need to find effective, mutually agreeable solutions. That's not a simple or easy task.

Baystate requires that employees who refuse to take flu shots need to wear face masks on the job, or take a leave of absence. In the EEOC's lawsuit, a nurse cited her sincerely held Christian religious beliefs in refusing to wear a face mask.

It appears that she and hospital management were not able to arrange the terms of a leave, and Baystate wound up firing her.

EEOC is challenging Baystate's decision on both medical and legal grounds, Troutman pointed out. It is questioning whether Baystate's policy of requiring employees who refuse to receive a flu shot to wear a face mask is effective in preventing the spread of the flu virus, as well as asserting that the hospital violated their client's religious rights by firing her.

¨If they were able to prove that wearing a face mask isn't an effective alternative to receiving a flu shot, Plaintiffs could argue that Baystate wasn't serious about offering a legitimate alternative and were engaged in religious discrimination,¨ Troutman said.

In the Mercy Fitzgerald lawsuit, the plaintiff essentially sunk his own case by submitting a very long letter explaining why he refused to receive a flu shot. After reading it, Judge Gerald Pappert concluded that the plaintiff's refusal was not based on religious beliefs.

Faced with the need to respect and accommodate employees' sincerely held religious beliefs while simultaneously adhering to organizational policies and legal obligations leaves employers between something of a rock and a hard place, Troutman said.

¨The lesson to take away from both these situations is that organizations cannot afford to make quick decisions,¨ Troutman said.

¨Employers need to take religious rights issues seriously," he added. "While protecting employees' religious rights, they have to find a way of balancing them with other compelling interests - in the case of hospitals, the health and safety of patients and co-workers. It's a fine line to walk.¨

Hospital administrators need to consider such situations from each and every possible perspective and proceed prudently before taking action, he added. That includes asking what the implications would be were they to accede to an employee's request for exceptional treatment, Troutman concluded.

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