Refusing Vaccines

January 11, 2013

It’s a hot topic among the parenting crowd, that’s for sure. I have friends and acquaintances who run the gamut on vaccination opinions; from those who don’t vaccinate at all, to partial/selected vaccinations, delayed vaccinations, and those who choose to fully vaccinate their kids.

A Vegan’s Beliefs

Now, the issue has come up in the realm of labor and employment law. Indiana University Health Goshen Hospital recently terminated employees for refusing the flu vaccine in late December, 2012. As far as we know, no claims have been filed but the IU nurses did claim medical and religious reasons for why they should be exempted from the hospital’s policy.

A recent federal court decision in Ohio touched on the issue of religious objections to vaccinations. An employee was discharged after refusing to be vaccinated for influenza as required by her employer, a children’s hospital. The employee had in previous years been granted a waiver to this requirement, because she claimed that, as a vegan, she could not ingest any animal or animal by-products. After being discharged, the employee filed suit against the employer, alleging religious discrimination and wrongful discharge.

The employer hospital moved to dismiss, but the court declined to dismiss, finding that the plaintiff’s beliefs in regards to veganism to be ones that could be “held with the strength of traditional religious views” in accordance to precedent. The court also notes, as did the plaintiff, that the Code of Federal Regulations definition of religious practices can include “moral or ethical beliefs as to what is right and wrong” as long as they are “held with the strength of religious views.” Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., 1:11-CV-00917, 2012 WL 6721098 (S.D. Ohio Dec. 27, 2012)

 

RESEARCH REFERENCES

 

Case Law

For related case law, try the following terms and connectors search on WestlawNext:

 sy,di(refus! +10 vaccin! innoculat!)

Many of the most relevant cases were older:

Anderson v. State, 84 Ga. App. 259, 65 S.E.2d 848 (1951) – Parents were found guilty of failing to enroll their children in school as a result of their refusal to allow them to receive required vaccinations. The parents objected to the vaccinations on religious grounds. The court here noted that “The refusal of the defendants here to have their children vaccinated amounted to a transgression of the rights of others.”

State v. Miday, 263 N.C. 747, 140 S.E.2d 325 (1965) – Defendant convicted of failure to vaccinate his child and failure to send his child to school. The court ultimately found that whether the father was justified in his religion-based refusal to vaccinate was a matter for a jury, and that “it is not necessary for a religious organization to forbid vaccination in order for its teachings to come within the meaning” of the statutory exemption for vaccination requirements.

Kolbeck v. Kramer, 46 N.J. 46, 214 A.2d 408 (1965) – Student was denied admission to a University due to his refusal to submit to smallpox vaccination. Student sued to compel admission, arguing that he objected to the vaccination on religious grounds, for which the University allowed an exemption to the vaccination requirement. The court upheld the trial opinion that the student had sufficiently proven his religious justification for refusing the vaccination.

I wanted to see more recent cases on these issues, so I filtered my cases by date. I decided to see how many results we get since January 1, 2000. There are 22 remaining cases. These include:

Boylan v. Matejka, 331 Ill. App. 3d 96, 770 N.E.2d 1266 (2002) – Navy veteran who received General Discharge under honorable conditions, one reason for which was his refusal to submit to an anthrax vaccine, was not eligible for a grant that was limited to veterans who had received an honorable discharge.

Adoption of Shelley, 55 Mass. App. Ct. 1115, 774 N.E.2d 686 (2002) – Court upheld finding of parental unfitness where (among other reasons), she had refused to allow her child to submit to necessary vaccinations.

Martin v. Donley, CIV.A. 11-1590 RBW, 2012 WL 3574048 (D.D.C. Aug. 21, 2012) – Former Air Force Reservist who had received general discharge due to his refusal to submit to a required vaccination requested that it be changed to honorable. Military board denied request, and court upheld decision, finding the decision to not be arbitrary and capricious.

Baetge-Hall v. Am. Overseas Marine Corp., 624 F. Supp. 2d 148 (D. Mass. 2009) – Medical officer on a maritime prepositioning ship sued former employer claiming retaliatory discharge after she refused to receive the smallpox or anthrax vaccinations. The court held “[t]erminating an employee for allegedly stating her intent to notify federal authorities about dangerous or harmful activities aboard a seagoing vessel raises significant public policy concerns” such that the plaintiff established a prima facie case for retaliatory discharge under maritime law for whistleblowing. But the court also held that the plaintiff’s refusal to take the vaccinations qualified as a non-retaliatory reason for her termination. The court addressed a variety of other issues, including evidence of disparate treatment.

Secondary Sources

Try a search using the title and preliminary fields:

 ti,pr(vaccinat! innoculat!) & refus! /25 vaccinat! innoculat!

In my secondary source results, I see the following:

Compulsory Vaccination, 12 Yale L.J. 504 (1903)

Lea Ann Fracasso, Developing Immunity: The Challenges in Mandating Vaccinations in the Wake of A Biological Terrorist Attack, 13 DePaul J. Health Care L. 1, 2 (2010)

Ben Horowitz, A Shot in the Arm: What A Modern Approach to Jacobson v. Massachusetts Means for Mandatory Vaccinations During A Public Health Emergency, 60 Am. U. L. Rev. 1715 (2011)

Jay Gordon (FNd1), Parents Should Not Be Legally Liable for Refusing to Vaccinate Their Children, 107 Mich. L. Rev. First Impressions 95 (2009)

Christine Parkins, Protecting the Herd: A Public Health, Economics, and Legal Argument for Taxing Parents Who Opt-Out of Mandatory Childhood Vaccinations, 21 S. Cal. Interdisc. L.J. 437 (2012)

Daniel B. Rubin, Sophie Kasimow (FNd1), The Problem of Vaccination Noncompliance: Public Health Goals and the Limitations of Tort Law, 107 Mich. L. Rev. First Impressions 114 (2009)