Unvaccinated Employees Sue Conway Regional

Former and current employees at Conway Regional Medical Center Inc. say their religion forbids getting the COVID-19 vaccine, and six named plaintiffs sued the hospital system last month to prevent it from enforcing its vaccine mandate in their cases. The suit could signal a trend of Arkansas lawsuits over employer vaccine requirements.

Conway Regional employees must receive the COVID vaccine or face termination, according to the lawsuit, filed in Faulkner County Circuit Court.

“Conway Regional’s actions were unconscionable because, among other reasons, they forced Plaintiffs to choose between their religious beliefs or providing for their families,” said the suit, filed by Brian A. Vandiver of Cox Sterling McClure & Vandiver of North Little Rock.

Vandiver told Arkansas Business that some of the plaintiffs, mostly nondenominational Christians, were fired while others still have their jobs. The suit also said vaccinated employees receive better terms and conditions of employment, though it did not specify those.

The plaintiffs asked for religious exemptions from vaccination. Conway Regional granted some exemptions while rejecting others. The suit seeks unspecified damages for lost wages and emotional distress. Conway Regional said it wouldn’t comment on pending litigation.

Vandiver said other employers could soon face suits like the Conway Regional case. Hospitals, manufacturers and large employers in Arkansas are imposing similar mandates, he said. “And each case will be different with regard to their policies and what their needs are based upon their business,” he said.

Employment lawyer Stuart Jackson of Wright Lindsey Jennings of Little Rock, who hadn’t read the lawsuit, said generally plaintiffs are going to have an uphill battle in these cases. “Because even if you accept that someone has a legitimate religious belief against vaccinations, then the next question is, is there a reasonable accommodation?” Jackson told Arkansas Business. “When it comes to religious beliefs, that bar is pretty high, especially if you’re working in a hospital and providing direct care as a nurse.”

He said the hospital could tell the employee that no reasonable accommodation is available.

Law professors also said employees who directly work with patients could find it particularly hard to avoid vaccination and prevail in court.

The Equal Employment Opportunity Commission recently released guidance that said employers must at least try to accommodate workers’ religious beliefs, said John DiPippa, dean emeritus at the Bowen School of Law at the University of Arkansas at Little Rock. “If the employer decides that the employee is sincere, then they have to look at whatever accommodations might work, and the employer can choose the one that is the least burdensome.”

Health care employers can take into account the burden the unvaccinated could place on medically vulnerable people they encounter, DiPippa said.

“The Supreme Court has interpreted that reasonable accommodation requirement in a very modest way,” said Jim Oleske, who teaches constitutional law at Lewis & Clark Law School in Portland, Oregon. “An employer, under the text of the statute, can decline to reasonably accommodate, if providing accommodation would cause an undue hardship. The Supreme Court has interpreted that undue hardship very favorably towards employers, and said it means anything more than a de minimis cost will allow employers to turn down a religious accommodation in the workplace.”

In the health care field, the risk of health care workers giving patients a communicable disease “would seem to clearly be a situation” in which accommodating the employee would be imposing costs on others, Oleske said. “And costs are interpreted not just in terms of financial costs but also harm to others.”

In general, employers and other institutions can mandate vaccines, and workers aren’t entitled to a religious exemption, said Joshua Silverstein, a professor at the Bowen School of Law.

“However, if the employer has an exemption system, and allows people to be exempt for some reason, they generally also have to allow religious people an exemption as well, because you can’t discriminate against religion,” he said.

Silverstein said proving that someone has a religious belief has been fairly easy, as courts don’t like to question a person’s sincerity about religious adherence. But he said the law is unresolved in connection with the mandates. “And so there are still a lot of open-ended issues,” Silverstein said.

Assistant Editor Kyle Massey contributed reporting to this column.