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New Jersey Employment and Civil Rights Attorney discusses Employee's First Amendment Rights and Flu Shots

Or . . . "It's not really about Flu Shots."

A Nurse was fired for refusing a flu vaccine for "secular" reasons. Her employer maintained a policy that allowed employees to refuse the shot on religious grounds, but was silent on whether or not someone felt that they had a secular "expression-based" right to refuse the shot.

She filed for Unemployment Benefits. She was denied those benefits on the grounds that her refusal to participate in the flu shot program (or more properly, her refusal to attempt to exempt herself from the flu shot program on religious grounds) constituted "simple misconduct" to disqualify her for benefits.

The New Jersey Appellate Court recently reversed that decision by the Department of Labor's Board of Review - the entity that deals with Unemployment Appeals - on the grounds that the upholding of the termination unconstitutionally discriminated against this employee's freedom of expression by "improperly endorsing the employer's religion-based exemption to the flu vaccination policy" and by "rejecting the secular choice proffered by Appellant."

The Court said: "The flu vaccination policy is not based exclusively on public health concerns because an employee claiming an exemption is only required to sign a form attesting to his or her faith-based reason for refusing to be vaccinated, accompanied with an appropriate note from a religious leader."

The Court further stated that "these requirements are facially unrelated to public health issues, patient safety concerns or scientifically valid reasons for the containment of the flu virus." The Court closed by stating that the religious exemption "merely discriminates against an employee's right to refuse to be vaccinated based only on purely secular reasons."

In essence, this was a First Amendment Decision. The First Amendment prohibits government not only from preferring one religion over another, but by preferring religion "over non-religion."

This point can't be overstated. I have long said in other Blogs that the anti-establishment clause of the Constitution is not there to protect religion from the grasp of government, but rather to protect government from the grasp of religion. We have reached an era where even politicians that you know in your heart are not religious feel they still have to spout religious platitudes in order to be accepted by voters whose first (and in some cases only) issue is whether the candidate has a faith like theirs, or even a faith at all. In all the years that Barack Obama was a Senator prior to campaigning for the Presidency, I am sure he didn't say "God" and "pray" and other words like that as he did in any given month during his campaign and his Presidency. He obviously feels he has to say those things in order to reach voters whose minds and hearts are closed unless pried open with religious keys.

The New Jersey Appellate Court did the right thing, and moreover, it did the right thing bravely and said it succinctly. Atheism is no less a "creed" or "belief system" than is an religion or spiritual belief system.

People who express their "creeds" through secular, atheistic or agnostic styles of communication and position-taking have as much right to be protected against discrimination in favor of faith-based persons as faith-based persons do have the right to be protected against discrimination in favor of other faiths.

A good decision, and another reason to be proud of New Jersey's Courts, because I don't think the United States Supreme Court would have done the right thing here.

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