Alanda Watson and Denise Mercurius say the flu-prevention policy is discriminatory and violates their constitutional rights
Two office workers who were fired from a social service agency last month for refusing to get a flu shot or wear a mask in their corporate headquarters have filed suit against the company, claiming its new flu-prevention policy is discriminatory and unconstitutional.
The suit, filed in Superior Court in Burlington County Monday morning, contends Lutheran Social Ministries of New Jersey violated the state's Law Against Discrimination for penalizing the women, Alanda Watson and Denise Mercurius, after they sought an exemption from the mandatory flu shot on religious grounds.
The women claim the agency also retaliated against them -- violating the Conscientious Employee Protection Act, the state's whistleblower law -- after their case was profiled by NJ Advance Media and other news outlets.
Watson, 36, of Willingboro, and Mercurius, 45, of Maple Shade, say the alternative to the shot -- wearing a surgical mask in an office where they have no contact with patients -- is both ineffective and punitive, singling them out with a "scarlet letter" that violates their rights to medical and religious privacy.
A Google street view image of the Burlington Township headquarters of Lutheran Social Ministries of New Jersey "The forced wearing of a mask at all times, in a strictly office environment, without exceptions even for eating, drinking or other necessary and normal life functions, is not a reasonable accommodation," the women's attorney, Alan Schorr, wrote in the suit. "It is a punitive and coercive action taken for the purpose of unlawfully discriminating and retaliating against the plaintiffs."
The suit seeks the women's reinstatement, along with back pay and damages.
Watson and Mercurius were among three workers fired Nov. 17 for refusing to comply with the company's policy. The third, Megan Duncan, 30, of Howell, quickly found a new job and declined to join the suit.
Schorr said the suit marks the first broad legal challenge to a vaccine-or-mask policy outside of a healthcare setting in New Jersey. The mandatory policies have become increasingly common in hospitals across the country in recent years, in part because the Affordable Care Act of 2010 ties some Medicare funding to employee vaccination rates.
Lutheran Social Ministries of New Jersey adopted the policy earlier this year and began enforcing it in October, the traditional start of flu season. The agency employs about 630 people statewide at its various facilities, including two nursing homes, a day treatment center for the homeless, an immigration center and shelters for battered women and at-risk children.
Watson, a billing specialist, and Mercurius, an accountant, say they are healthy women and are deeply opposed to the flu shot, which can have serious side effects, including paralysis, in very rare cases.
According to the lawsuit, the women were first assured by a manager they would not have to wear a mask unless they visited clients at the agency's nursing homes or other facilities. Later, the suit states, the company changed its policy to require the mask for unvaccinated workers at its Burlington Township headquarters, where about 30 people work.
In a Nov. 5 story about the issue, Lutheran Social Ministries' president, Colleen Frankenfield, told NJ Advance Media that clients occasionally visit the headquarters and that the mask could help prevent cross-contamination of workers who regularly travel to other facilities. The company declined comment Monday.
In the suit, Schorr characterized the agency's policy as nonsensical given the vaccine's hit-or-miss effectiveness.
Citing the Centers for Disease Control and Prevention, he said the flu vaccine in the 2014-15 flu season was just 23 percent effective on average and just 10 percent effective for those ages 18 to 49.
"If the defendants were actually interested in preventing the spread of dangerous viruses and if the employer actually believed that masking was an effective method of preventing the spread of dangerous viruses, then the defendants could have and should have required all employees to wear masks at all times regardless of whether they received the flu vaccination," he wrote.
In addition, the suit states, the agency does not require proof of vaccinations for outside vendors who regularly visit the building.
The suit contends Lutheran violated the whistleblower law after Watson and Mercurius spoke out by suspending them without pay, firing them and challenging their application for unemployment, maintaining they engaged in misconduct.
Mark Mueller may be reached at mmueller@njadvancemedia.com. Follow him on Twitter @MarkJMueller. Find NJ.com on Facebook.