(Carmen Natale)

Denying unemployment benefits to a nurse fired for refusing a flu vaccine for secular reasons violated her First Amendment right to freedom of expression, where hospital policy allowed employees to skip the shot on religious grounds, a N.J. appeals court held on Thursday in a precedential case.

The court reversed the state Department of Labor’s Board of Review, which had found that the vaccination policy of June Valent’s former employer, Hackettstown Community Hospital, was reasonable and that her refusal to comply with it amounted to “simple misconduct” connected to her job that justified disqualifying her from unemployment benefits.

“The Board’s decision upholding appellant’s termination unconstitutionally discriminated against her freedom of expression by improperly endorsing the employer’s religion-based exemption to the flu vaccination policy and rejecting the secular choice proffered by appellant,” the Appellate Division said in Valent v. Board of Review.

Valent had been working full-time at the hospital for more a than a year when the flu vaccine requirement took effect in September 2010. It was imposed by Adventist Health Care, Inc., which owns the hospital, as the “Health Care Worker Flu Prevention Plan” whose stated purpose, according to the corporate manual, was to boost health-care worker vaccination rates and prevent the spread of the flu during the flu season or pandemic.

The vaccine was mandatory absent a documented medical or religious exemption. Those claiming an exemption had to sign a declination form and 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.”

Valent agreed to wear the face mask but refused to be vaccinated—“presumably based on purely secular personal reasons,” according to the appeals court opinion.

As a result, the hospital fired her and opposed her application for unemployment compensation.

She won the first round when a deputy claims examiner declared her eligible but the hospital challenged the decision and the Appeal Tribunal reversed after a telephonic hearing in which she did not take part. The Board of Review reversed and required a new hearing with an opportunity for her to participate.

The Appeal Tribunal then found Valent eligible, saying her “preference not to take a vaccine for her own personal health convictions simply did not demonstrate a willful disregard or neglect of the employer,” given that she offered to wear the mask. She thus was not fired for misconduct and was eligible for unemployment, it found.

The Board of Review reversed, finding she violated the flu vaccination policy because she failing to provide the documentation needed for an exemption on either religious or medical grounds.

On her appeal from that final agency action, Valent contended she should not have been terminated because she materially complied with the vaccination policy and raised the First Amendment argument.

Judges Jose Fuentes, Marie Simonelli and Michael Haas held that the agency’s action in disqualifying her was arbitrary, capricious and unreasonable and violated Valent’s freedom of expression.

“The religion-based exemption irrefutably illustrates that 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,” Fuentes wrote for the panel.

“These requirements are facially unrelated to public health issues, patient safety concerns, or scientifically valid reasons for the containment of the flu virus,” he said, adding that the religion exemption “merely discriminates against an employee’s right to refuse to be vaccinated based only on purely secular reasons.”

Fuentes pointed out that the First Amendment prohibits government not only preferring one religion over another but preferring religion over nonreligion.

In addition, the hospital produced no evidence that Valent’s refusal adversely impacted it or undermined her ability to perform her job, he said.

Lee Moore, a spokesman for the Attorney General’s office, which represents the agency, said the decision is under review.

Valent, who appeared pro se, could not be reached for comment.

Lisa Dimiceli, a spokesperson for the hospital, now known as Hackettstown Regional Medical Center, said it concurred with the New Jersey Hospital Association’s reaction to the decision. That group’s senior vice president of clinical affairs, Aline Holmes, said that state and federal health authorities highly encourage hospitals to increase flu vaccination rates for employees to safeguard public health and that more and more hospitals are adopting mandatory vaccination policies because research shows they are effective. “With this decision, we worry that hospitals and other health-care providers are receiving conflicting messages from regulators and the judicial system when, in fact, our bottom-line goal is simply to protect patients during flu season,” Holmes said.

Like most states, New Jersey does not require flu vaccinations for healthcare workers, though they must be offered to hospital patients 65 and older.

Contact the reporter at mgallagher@alm.com.