Quirky Question #256, Mandating vaccines for employees?

Question

Between the flu and the current measles outbreak, we are considering imposing a requirement on each of our employees to get a flu vaccine each year and either get the MMR vaccine or provide proof that they have received it in the past.  We’re concerned not just about employee productivity, but also the health of all of our employees and our customers.  Are there any legal issues we need to worry about?

Answer:  By Scott Selix and Nadia Martyn

Scott Selix

Scott Selix

Whether related to the flu, H1N1, or the current measles outbreak, vaccinations have become a hotly contested issue.  Employers and even some legislatures are considering vaccine mandates for their constituents.  The short answer to your question is that under federal law, employers probably can require vaccines provided they make exceptions for religious beliefs or persons medically unable to be vaccinated.

But to properly address whether employers can or should implement a vaccine mandate, the best place to start is to look at the reasons employees might be unvaccinated.  For most Americans vaccinations are done at an early age and voluntary vaccination continues throughout adulthood.  chrVaccines have helped eradicate such deadly diseases as smallpox, polio, and (for a time) measles.  Many Americans, however, remain unvaccinated.  Some are not vaccinated for various medical reasons, such as infancy or serious illness (e.g., cancer).

There is also a small portion of Americans who choose to forego vaccinations based on personal beliefs.  Certain religions reject vaccinations altogether, while other religions reject only certain vaccines.  Still others refuse vaccines based on a personal belief which has become highly controversial as of late.  A 1998 medical research paper claimed that the measles, mumps, and rubella (MMR) vaccine was linked to autism and autism related disorders.  Following the paper’s publication, MMR vaccination rates across the world dropped by as much as 20%.  In the decade-plus since the paper’s publication, the medical community has rejected the paper as an “elaborate fraud,” the publisher has retracted the paper, and the author of the letter lost his medical license due to fraudulent methodologies and reports of child abuse in the study.  The modern scientific community strongly endorses the MMR vaccine and all vaccines as safe and effective.  Nevertheless, perceived danger of vaccines and fear of autism related disorders remains the most common reason Americans choose not to vaccinate themselves and their children.

shutterstock_73956619Despite individual concerns, certain organizations have long had policies requiring their constituents be vaccinated.  Students attending public education institutions, for instance, generally are required to have received certain vaccines.  Yet every state allows exemptions from these requirements in certain situations.  There are three common exemptions that apply to varying degrees in different states: medical (every state), religious (most states), and, controversially, “personal belief” (approximately 20 states).

The controversy surrounding these personal-belief exemptions stems from the fact that individuals who cannot be vaccinated—infants, cancer patients, etc.­—rely on “herd immunity” to avoid contracting diseases.  The larger the percentage of the population that is immune to a disease, the smaller the chance the disease can spread. This “herd immunity” makes infection less probable among those without individualized immunity. Compounding the problem is the fact that individuals who are unable to receive vaccinations usually cannot do so due to a compromised immune system.  These individuals thus are more susceptible both to contracting the disease and to suffering serious consequences.  In fact, the vast majority of measles-related deaths occur in unvaccinated children younger than five years old.

These concerns, along with cost and productivity issues caused by sick employees, are prompting employers to consider implementing vaccine mandates.  Generally, there is no law prohibiting private employers from requiring that its employees be vaccinated.  That said, there are two major concerns private employers must consider when implementing a vaccine mandate: religious discrimination under Title VII, and medical privacy and accommodation under various federal laws including the Americans with Disabilities Act (ADA).

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on, among other things, sincerely held religious beliefs.  Likewise, the ADA prohibits discrimination against disabled individuals.  Certain disabilities, cancer for instance, may cause employees to be unable to receive certain vaccinations.  Under the ADA and Title VII, employers must reasonably accommodate all disabilities and sincerely held religious beliefs unless doing so would cause the employer an undue hardship.  EEOC guidance has suggested that establishing such an undue hardship in the context of vaccine mandates would be very difficult, if not impossible, for an employer.  EEOC Informal Letter dated March 5, 2012.  In short, employers considering implementing a vaccine mandate must make exceptions (i.e., reasonable accommodations) for employees with a disability precluding vaccination or a sincerely held religious objection.

Title VII and the ADA’s requirements are analogous to the religious and medical exemptions discussed above for public school students.  You might be wondering if there is any obligation for private employers to honor a “personal belief” exemption.  Actually, no.  From a purely legal standpoint, employers can enforce a vaccine mandate against an employee (i.e., get vaccinated or face discipline/termination) even if the employee has a strongly-held personal belief against vaccinations.  By the same token nothing prohibits employers from allowing a personal belief exemption.  Employers might recognize such an exemption based on a respect for their employees’ personal choices and bodily autonomy.

Once an employer has implemented a vaccine mandate, the concern shifts to enforcement:  what’s to stop employees who hold anti-vaccine personal beliefs from falsely claiming a disability or religious exemption in order to skirt the mandate?  Under the ADA, an employer may ask for reasonable documentation about an employee’s asserted disability so long as the disability and need for accommodation are not obvious.  EEOC Enforcement Guidance: Reasonable Accommodations and Undue Hardship under the ADA.  Under Title VII, employers may require an employee provide third-party verification that the employee sincerely holds the asserted religious belief.  EEOC Informal Letter dated December 5, 2012.  Note the employee can provide verification from any third-party aware of the employee’s beliefs.  In other words, employers cannot require that the verification come from a church official or member.

Another enforcement issue is how to ensure all employees actually have been vaccinated.  For annual vaccines, like the flu vaccine, enforcement is relatively straight-forward: every employee gets vaccinated every year.  But for long-term or lifetime vaccines like MMR, it’s more complicated.  Some employees may have been vaccinated several decades ago.  Schools require students to present doctors’ certifications showing the students have received certain vaccines.  But employers requiring employees to be vaccinated must also consider whether such a requirement would violate any state or federal health data privacy laws.  The primary federal privacy law at issue is the Health Insurance Portability and Accountability Act of 1996 (HIPAA).  HIPAA only applies to certain types of entities, such as health plans or health care providers, called “covered entities.”  Most employers would not be considered a covered entity.  However, if the employer has a group health plan, that health plan would be a HIPAA covered entity.

As a HIPAA covered entity, the employer’s group health plan is restricted in what individually identifiable information it can use and disclose without an authorization from the individual.  Practically speaking, this means the group health plan cannot send health plan records regarding vaccinations (e.g., claims information for the vaccinations) to the employer without first obtaining an authorization from the individual whose records are at issue.

It is also possible that certain state laws regarding privacy of medical information may restrict what an employer can do with vaccination records once they are obtained from the employee.  These laws differ by state, but most states limit their medical data privacy laws’ applicability to medical providers, which definition would not apply to most employers.

While there are certain restrictions on the type of information an employer’s group health plan can use or disclose under HIPAA, requiring an employee to submit vaccination records directly to the employer should not significantly implicate any state or federal medical data privacy laws.  In conclusion, employers may implement and enforce vaccine mandates so long as they accommodate religious beliefs and disabled employees.  Employers need not exempt employees from such a mandate based on an employee’s personal beliefs.  That said, employers should consider whether presenting employees with a quid pro quo of required vaccination on the one hand, or discipline/termination on the other, is the best option for the company and its employees.  In all likelihood, employers who encourage or incentivize, rather than require, vacations will have greater employee satisfaction and loyalty.

Scott Selix

About Scott Selix

Scott is an associate in Dorsey’s Labor & Employment Group. His practice includes providing legal research and litigation support on a variety of employment issues. Scott also provides advice and......

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