Hospitals that require caregivers to be immunized against influenza are often sued to force them to exempt employees with religious objections from getting the shots, but last week a New Jersey court turned the argument for religious exemption on its head when it ruled in favor of a nurse whose objections to vaccination were purely secular.

The question before the court was not whether a hospital can require flu shots or lawfully fire an employee who refuses to get one.  The ruling concerned whether under New Jersey law such a refusal is “misconduct connected with the work” that would disqualify the terminated employee from collecting unemployment compensation benefits for eight weeks.  The Appellate Division of the New Jersey Superior Court decided in Valent v. Board of Review, No. A-4980-11T2 (June 5, 2014) that no such disqualification was warranted.  The decision has gained attention because the court commented in its decision that it would be “unconstitutional” for New Jersey to call an employee’s refusal to be immunized for secular reasons misconduct when it knew the hospital would have accommodated the employee if her refusal had been based on religious grounds.

The case concerned a registered nurse who had been employed for several years by Hackettstown Community Hospital.   The hospital’s parent corporation issued a mandatory immunization rule to prevent the spread of flu to patients, residents, healthcare workers, their families and the community.  Employees claiming a documented medical or religious exemption could decline the vaccine, but were required to wear a facemask during the flu season.  Failure to comply with the policy could result in progressive discipline up to and including termination.

The nurse refused to be vaccinated for the flu.  She did not assert an exemption based on medical or religious reasons, but she did agree to wear a mask during flu season.  Despite this, she was terminated.  She applied for unemployment compensation and in the administrative process was initially denied benefits, then awarded them, and then denied again on the ground that her refusal to be vaccinated was “misconduct connected with the work” within the meaning of N.J.S.A. 43-21:5(b).  This meant she would be disqualified from receiving benefits for eight weeks. 

The nurse brought a pro se appeal to the Appellate Division of the New Jersey Superior Court, arguing that she had complied with the material provisions of the vaccination policy and that deeming her act “misconduct” while endorsing the hospital’s right to exempt someone who does the same thing for religious reasons violated her right to freedom of expression under the First Amendment of the U.S. Constitution.  The court reversed the agency and held that disqualifying the nurse based exclusively on her refusal to comply with her employer's flu vaccination policy, was “arbitrary, capricious, and unreasonable.”

The court relied on a New Jersey regulation that defines "misconduct" for unemployment compensation purposes as an act that is “improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee.”  It concluded the hospital did not sustain its burden of proving the nurse's refusal to abide by the flu vaccination policy constituted such misconduct.  The court could have resolved the case on that basis without addressing the nurse’s constitutional argument, but the court went on to do so.

The hospital’s willingness to grant religion-based exemptions, the court said, “irrefutably illustrates that the flu vaccination policy is not based exclusively on public health concerns.”  Without any discussion of whether the hospital had provided for religious accommodations in order to comply with Title VII or medical accommodations in order to comply with the Americans with Disabilities Act, the court said the hospital’s medical and religious exemptions “are facially unrelated to public health issues, patient safety-concerns, or scientifically valid reasons for the containment of the flu virus.”  Therefore, it concluded, the “religion exemption merely discriminates against an employee's right to refuse to be vaccinated based only on purely secular reasons.”  Citing U.S. Supreme Court decisions for the proposition that government cannot prefer one religion over another, the New Jersey court said by denying the nurse unemployment benefits “based only on her unwillingness to submit to the employer's religion-based policy,” the state agency violated her rights under the First Amendment.

Aside from its controversial analysis of constitutional law, the Appellate Division appears to have gotten the unemployment compensation question right.  New Jersey regulations define “misconduct” narrowly and squarely place the burden for proving it on the employer.  State statutes also express a strong public policy in favor of financially supporting the unemployed.  What, if anything, the decision means for hospitals that have or are considering flu immunization requirements is more doubtful.   The Valent case would have no direct application outside the unemployment context or outside New Jersey.  Discussions in court opinions that are not necessary to the outcome (referred to as “dicta”) are not regarded as binding precedent for deciding later cases, but they are cited by litigants and sometimes have a persuasive effect in other litigation. 

At the moment the Valent decision appears to be a judicial outlier that does not seriously question the right of hospitals to require flu shots while accommodating religious beliefs that prompt refusals to comply.  If in the future another court is persuaded by the dicta in Valent, however, and based on its constitutional reasoning invalidates the immunization policy of a government or private hospital outside the unemployment compensation context, then more far-reaching consequences of the decision would have to be reckoned with.