Terminating 74-year-old for Refusing Flu Shot Raises Age Discrimination Question

Frank Ferreri

Birmingham, AL (WorkersCompensation.com) – Even before the pandemic, encouraging employees to get vaccinated has long been a best practice for a safer, healthier workplace.

However, as a hospital discovered in Smith v. Healthcare Authority for Baptist Health, No. 2:20cv887-MHT (M.D. Ala. 03/22/22), terminating an employee for refusing a vaccine could open the door to claims of discrimination.

Flu Shot Rule

The employee worked for the hospital from 1992 until 2019, when she was terminated for refusing to receive a flu vaccine. The employee took medication for psoriasis and psoriatic arthritis that could interact badly with the flu vaccine. Due to this potential interaction, the employee submitted a request from her physician seeking a medical exemption to the hospital’s flu shot requirement.

The hospital denied her request and terminated her employment. It was the first time during the employee’s tenure that she was required to receive a flu vaccine, and the employee did not interact with patients as part of her job.

Following the termination, the employee, who was 74 years old, sued, alleging that the hospital violated the Age Discrimination in Employment Act.

The ADEA makes it generally illegal for an employer to discriminate against employees on the basis of their age, and an employee can establish a claim by showing that her employer’s stated reason for taking an adverse action against her was just a cover up for discrimination.

Age Discrimination?

The court in this case found that the employee presented enough to go forward with her case, swatting down the hospital’s motion to dismiss the case. In particular, the court noted that:

  • The employee was qualified for her job.
  • She was replaced by someone significantly younger.
  • She had ample experience in her position and had performed her job satisfactorily for nearly 28 years.
  • She had never received a flu vaccine during her time with the hospital.
  • She submitted a well-supported request for a medical exemption.

The lesson from a case like this one is that a well-intentioned rule for workplace safety could have unintended consequences in how it’s carried out. In the employee’s case, the fact that she worked so long without having received a flu vaccine strengthened her case that the hospital could have had a discriminatory motive in terminating her.