Public Employee Has First Amendment Right to Refuse Flu Shot

By: Ralph R. Smith, 3rd, Esq.

The New Jersey Appellate Division recently handed down a significant decision regarding a public employee’s First Amendment right to freedom of expression.

In Valent v. Board of Review, 436 N.J. Super. 41 (App. Div. 2014), the Appellate Division reversed a Department of Labor- Board of Review decision that denied Appellant unemployment compensation benefits from her former employer, Hackettstown Community Hospital, based upon a finding of workplace misconduct.  The workplace misconduct stemmed from the employee’s refusal to receive a flu shot as mandated by hospital policy.  The vaccine was mandatory absent a documented medical or religious exemption.  Those claiming an exemption had to sign a declination form, provide a letter from a spiritual leader or doctor, and were required to wear a face mask for the entire flu season.  The policy provided that failure to comply “will result in progressive discipline up to and including termination.”

Appellant agreed to wear a face mask but refused to be vaccinated – not on any religious grounds but for “purely secular personal reasons.”  The Appellate Division reversed the finding of the Board of Review that this refusal to be vaccinated constituted improper work place misconduct to justify a partial disqualification from benefits.  The court ruled that the religious based exemption violated the First Amendment rights of employees like Appellant who refused to be vaccinated based upon purely secular and non-religious reasons.  The policy therefore improperly favored religious over non religious beliefs, which is not permitted under the First Amendment.  As a result, Appellant could not be found to have engaged in work place misconduct to disqualify her from receiving unemployment benefits.

The instant case highlights that governmental employers may not prefer religion over non-religion in setting policies because employees still retain their constitutional rights in the workplace.  Therefore, in creating workplace polices, public employers must be sensitive in implementing policies potentially affecting the constitutional rights of their employees.