Alan Schorr’s Employment Case of The Week ending June 6, 2014

Valent v. Board of Review, 436 N.J. Super. 41 (App. Div., June 5, 2014)

By scoring the Case of The Week for three consecutive weeks, Judge Fuentes has earned a dubious distinction in Case of The Week history. This judge already has three of his opinions pending at the Supreme Court and another two probably on their way (the NJ Supreme Court generally decides only one or two employment a year – now they are liable to have five from the same judge at the same time). Just two weeks ago, in Spina v. Board of Review, Judge Fuentes’ panel affirmed denial of a CEPA claim and unemployment for a home worker who blew the whistle on suspected child abuse. This week, in a published opinion, Valent v. Board of Review, the Appellate Division went the complete opposite direction and made national news by declaring that a hospital’s flu vaccine policy is unconstitutional because it provides religious exemptions, but not non-religious exemptions.

June Valent was a registered nurse with the Hackettstown Community Hospital. The hospital instituted a mandatory flu vaccine policy. The hospital provided two possible exemptions, a medical exemption, which required a doctor’s note, or a religious exemption, which required a form attesting to his or her faith-based reason for refusing to be vaccinated “accompanied with an appropriate note” from a religious leader. According to the opinion, Ms. Valent was unable to get a medical exemption because her doctor disagreed and refused to sign the form. Still, Ms. Valent objected on secular grounds, and refused to take the flu vaccine. She was terminated. She was originally found eligible for benefits, but the employer appealed. She was found eligible at the Appeal Tribunal, where the employer failed to show up. But the employer again appealed and the Board of Review remanded and gave the employer another chance. They lost again, and appealed again to the Board of Review.

The Board of Review reversed, holding that Ms. Valent refused to comply with a reasonable policy of her employer. Ms. Valent appealed pro se to the Appellate Division, arguing that the practice of accommodating employees for religious reasons but firing employees for non-religious reasons violated the First Amendment. She also argued that “her refusal to be vaccinated under these circumstances was an isolated incident of minor significance and does not warrant a seven-week disqualification of her unemployment benefits.” (It is actually an 8 week disqualification).

Now, there is no question that Ms. Valent should not have been disqualified for benefits. As the panel correctly found, this is not the kind of conduct that constitutes a deliberate and wonton violation of standards of conduct. Furthermore, it was the employer who changed the conditions of employment. Furthermore, there is ample Board of Review precedent that workers who refuse vaccines do not engage in misconduct. So, by reversing the Board of Review, the panel got it right. But, it was not enough for this panel to simply follow unemployment law and properly reverse. Instead, the panel held that the hospital’s flu vaccine policy violates the First Amendment of the US Constitution because the policy favors religious exemptions over non-religious exemptions. In doing so, the App. Div. in this published opinion has basically invalidated every hospital flu vaccine policy. While I agree with the panel that workers should not be terminated for refusing to take a flu vaccine, the Constitutional rationale in this case is indefensible, and therefore subject to reversal.

The fatal error of logic by the panel is that it incorrectly presumed that the hospital’s practice of providing exemptions for sincerely-held religious beliefs constituted a “preference” of religion over non-religion. They are completely wrong. The hospital was not preferring religion over non-religion; they were complying with the New Jersey Law Against Discrimination, N.J.S.A.10:5-12(q), as well as Title VII of the Civil Rights Act of 1964, which expressly requires employers to accommodate employees who have a sincerely-held religious belief so long as it does not cause undue hardship. There is no way that the employer could argue undue hardship here, since employees granted exemption merely had to wear a mask, and the claimant was willing to do so. In that respect this case is similar to the case of Murphy v. Somerset Medical Center.

In order for this logic to survive Constitutional scrutiny, it would require a finding that Title VII and the Law Against Discrimination’s requirements of religious accommodation violates the Constitution as a religious preference. Following the logic of the Appellate Division, an employer who accommodates religious Jews and Seventh Day Adventists by not requiring them to work on Saturdays would violate the Constitution if it forced a devout college football fan to work on Saturdays. An accommodation required by equal protection law is not a preference and while I will fight for equal rights for employees as long as I live, this ruling is unfair to employers who cannot possibly comply with the Law Against Discrimination’s religious accommodation requirement without violating the US Constitution and therefore violating the Conscientious Employee Protection Act if an employee is terminated for refusing to follow an unconstitutional policy.

One final word about flu vaccine policies. I have no problem with hospitals requiring their employees to have flu shots, and if they do not, they must wear masks to protect co-workers and patients. But there are many great reasons why people refuse these shots, and they are not all religiously or medically-based. There are hundreds of web sites providing information about the dangers of flu vaccines. Vegans object because the shots contain egg byproducts. Many others object because there are many possible side-effects that they do not wish to be exposed to. Not every clergyman and medical doctor agree, making it very difficult for conscientious objectors to establish a medical or religious reason supported by medical or religious certification.

So the panel got it right, but for the wrong reasons, and as a result have provided a published opinion that will likely be reversed on appeal. The same panel who, in State v. Saavedra, held that an employee protected under CEPA from copying employer documents showing unlawful activity can be criminally prosecuted have now ruled that any employer who offers religious accommodation has violated the US Constitution by preferring religion over non-religion. Hopefully Ms. Valent, who deserves to be commended for her tenacity in pursuing this matter pro se, will not lose her deserved unemployment benefits as a result.

Claimant/Appellant:- June G. Valent, pro se.

Respondent Board of Review’s Counsel: John J. Hoffman, Acting Attorney General, Alan C. Stephens, Deputy Attorney General.

Hackettstown Community Hospital did not file a brief.

Judges: Judges Fuentes, Simonelli, and Haas.