In what may be the first of several similar lawsuits over mandatory employee vaccination policies, plaintiff Kenya Lawton claims that his former employer, a New Jersey hospital, terminated his employment as a painter after he refused to take an annual influenza (flu) shot which he claims violates his religious beliefs as a Messianic Jew. While the vaccine in this matter involves a flu vaccine, this case may be a harbinger for the court’s treatment of mandatory COVID-19 vaccines in the workplace.
The lawsuit highlights a potential conflict in two state laws. First, the New Jersey Law Against Discrimination (“NJLAD”) generally prohibits employers from taking adverse employment action against an employee for, among other things, the employee’s refusal to take certain actions that violate the employee’s closely-held religious beliefs. The other is “An Act concerning influenza vaccination and supplementing Title 26 of the Revised Statutes” (“the Act”), a law enacted in 2019 which requires health care facilities to provide its employees with seasonal flu vaccinations. Like the NJLAD, the Act has an exception for employees who cannot take a vaccine due to a medical reason; however, unlike the NJLAD, there is no mention of an exemption for an employee’s closely-held religious belief.
On December 31, 2020, Mr. Lawton was terminated from the hospital for refusing to take the flu vaccine. Since the hospital has not yet filed an answer to the complaint, we cannot state with certainty what its defense will be, but it is possible it has to do with fact that the flu vaccine Act contains no religious exemption. The employee seeks to apply the NLAD to demonstrate that the termination was for an illegal purpose.
While the statute at issue involves the seasonal flu vaccine, we expect that any decision or finding made by the court may have some effect on the implementation of policies requiring COVID-19 vaccines as a condition of continued employment. EEOC guidance currently instructs employers to consider employees’ closely-held religious beliefs when enforcing such a policy.
How Frier Levitt Can Help
Frier Levitt’s employment attorneys are on the cutting edge of legal developments in the rapidly-developing field of employer-employee COVID vaccination policies. If your practice, pharmacy, or business is considering such a policy or its options, contact Frier Levitt’s employment law practice group today.
