July 21, 2017
One Shot Fits All? Employers Struggle with Vaccination
by Marie-Joelle C. Khouzam, Bricker & Eckler LLP
Most people do not hesitate to vaccinate their children before entering elementary school, or to get an annual flu shot themselves. Others find these decisions difficult. Actress Jenny McCarthy vocally opposed the standardized frequency of childhood vaccines, believing this contributed to her son’s autism. And Scientologist Jenna Elfman has argued that laws mandating childhood vaccines before enrolling in school or daycare limits parental choice.
In the health care and education fields, concern over vaccinations creates challenges for workplaces. Employers mandate vaccines out of concern for the well-being of their first-line employees exposed to patients and students, and fear of potential liability from contagious outbreaks. Employees occasionally object, citing doubts about the prophylactic effects of the vaccine, concerns about side effects, concerns about requiring vegans to consume vaccines that contain egg products , religious objections on moral grounds or because their faith does not support the use of medication.
The Americans with Disabilities Act (ADA) permits exemptions from mandatory flu shots when an individual has “true medical contraindications such as anaphylaxis to vaccine, known allergy to vaccine component or severe egg allergy.” The medical contraindication must be documented by the primary care provider or sub-specialist caring for the employee.
The ADA permits employers to make medical inquiries following a request for an accommodation if the disability or need for accommodation is not known or obvious. The employee’s provider must sufficiently document a disability, as defined by the ADA: the nature, severity and duration of the impairment; the activities that the impairment limits; the extent to which it limits the employee's ability to perform the activities; and why the requested accommodation is needed.
Exemptions may also be requested for religious reasons, where the employee demonstrates a sincerely held religious, moral or ethical belief against vaccination. Denying a requested reasonable accommodation of an employee’s sincerely held beliefs, if it will not impose an undue hardship on the business, could give rise to a discrimination claim.
So what’s an employer to do? Consider the following practical pointers:
- Consider job descriptions note vaccinations as an essential function or requirement of the job.
- Establish a policy and deadline for lodging objections to mandatory vaccines, and explain the process for filing objections. Explain the procedure or work alternatives if exempted from the vaccination requirement. Have employees sign for receipt of this policy.
- Consider giving employees requesting an exemption time off to reconsider, which may also give the employer and employee time to evaluate alternatives.
- In some instances, the use of a mask at work during the traditional flu season may reduce the transmission of the flu and be an acceptable accommodation. This could mean added cost to the employer and possible resistance on the part of employees.
As a last resort, an employer may have no choice but to terminate the employee if there is no reasonable accommodation, but this should only be done after consulting with counsel and with an understanding of the potential risks, which can include costly litigation.
There is no shortage of difficult choices on both sides of this debate, so employers and employees are encouraged to communicate expectations and concerns and find acceptable solutions if possible.