Lutheran Social Ministries of New Jersey has fired three of its Burlington office workers after they refused the seasonal influenza vaccine and were also unwilling to wear a face mask.
The employees, all healthy women in the accounting or billing departments, failed to comply with the social services agency’s flu prevention policy and were let go after an unpaid suspension.
Alan Schorr, the Cherry Hill attorney who represents two of the employees, said his clients intend to file a lawsuit for discrimination, although he declined to provide further details at this time.
Several legal scholars, however, doubted whether such a case would succeed.
“If everybody’s treated the same, then no one has a claim, no matter how silly the rule is,” said Charles Sullivan, a law professor at Seton Hall University. “If everybody has to comb their hair on their right side, then everybody’s treated the same and there’s no discrimination.”
“I don’t see any case at all,” added Alan Hyde, a professor of labor and employment law at Rutgers law school. “Unless there’s discrimination of some kind, most Americans can be fired for any reason or no reason at all.”
Employers are increasingly making flu shots mandatory for workers, particularly in health care settings. Lutheran Social Ministries offers nursing home care, and elderly people often have weaker immune systems and are therefore particularly susceptible to complications if they contract the virus. As administrative employees, the terminated women did not have regular contact with patients, but shared a building with many workers who did.
Regardless of the potential for transmission, University of Pennsylvania infectious disease specialist Neil Fishman said having uniform regulations is standard.
“It is very difficult to set a policy and implement it differently in different areas across an organization,” he said.
The power of compulsory vaccine programs became clear about a decade ago from studies of nursing homes in the United Kingdom, Fishman said. Sites with fully vaccinated employees had much higher patient survival rates than those without vaccinated workers.
In 2009, Penn’s hospital system implemented a mandatory vaccination policy. Since then, vaccination rates have gone way up — to around 98 percent — and flu transmissions in the hospital, although subject to a variety of factors, have gone down.
Like Lutheran Social Ministries, Penn offered a face mask alternative in the first year of the program. But, Fishman said, its limitations quickly became clear.
“The mask actually gets moist and pretty disgusting when you wear it for more than 20 minutes,” he said. “That was not a viable option.”
Now, any employee involved in patient care must get a flu shot. No exceptions.