Contributed by Allison P. Sues, November 12, 2019
Flu season is here and that likely means employers can hear
sneezing and sniffling up and down the hallways at work. Sick employees
are less productive and their absences can disrupt an employer’s
operations. Worse still, sick employees may come into work and spread an
illness to coworkers, exacerbating the problem. According to the U.S.
Center for Disease Control (CDC), recent studies show that flu vaccinations
reduce the risk of flu by between 40 and 60 percent. Given this,
employers may wish they could mandate that all employees receive a flu
vaccination. But can they?
For those employers outside the
healthcare field, the answer is probably not. The Americans with
Disabilities Act (ADA) allows employers to submit their employees to certain
health screenings and inquiries depending on what point in the stage of
employment the screening or inquiry takes place. Per the federal
regulations supplementing the ADA, employers are generally prohibited from
asking any disability-related questions or requesting any medical exams before
a conditional offer of employment is extended to the applicant. Once an
offer of employment is made, an employer may require a medical examination if
the same examination is used for all entering employees in that job category.
If an employer uses certain criteria from these examinations to screen out
employees, those criteria must be job-related and consistent with business
necessity.
As for current employees, the ADA
generally prohibits employers from mandating that employees receive any medical
testing or vaccinations unless they are job-related, consistent with business
necessity, and no more intrusive than necessary. This is a very difficult
standard to meet unless the employer is part of the healthcare field or otherwise
requires employees to regularly interact with immune-compromised clients,
patients, or customers.
But there are several practices that employers can take to
encourage employees to receive vaccines short of job-contingent mandates.
Employees are more likely to get vaccinated if it is easy and affordable to do
so. Employers may want to subsidize the cost of vaccines, allow paid time
off to go get vaccines, or offer vaccines at the workplace to reduce any
inconvenience.
As for employers in the healthcare field, courts have
repeatedly upheld an employer’s right to require that employees receive
vaccinations if they work directly with patients – such as a nurse, doctor, or
patient care assistant – or if they handle materials that could spread infection
– such as a lab technician. The CDC recommends that these healthcare
workers receive vaccinations for hepatitis B, flu, measles, mumps, rubella,
chickenpox, tetanus, diphtheria, pertussis, and meningococcal diseases.
Mandating vaccines, even in the healthcare field, is not
without legal risks of which employers should be aware. The U.S. Equal
Employment Opportunity Commission takes the position that healthcare employers
must consider exemptions for those employees who cannot receive vaccines for reasons
related to disability, pregnancy, or religion. Employers should analyze
each request for exemption on a case-by-case basis, including review of the
employee’s job position, as well as the employee’s particular religious belief
or medical documentation corroborating the disability at issue.
For employees who object to vaccines based on religious
grounds, employers should first determine if the employee sincerely holds the
religious belief. Courts do not overly scrutinize this question.
While the belief cannot be social, political, or personal to qualify as a
sincerely-held religious belief, courts cast a fairly wide net as to what
religious-based beliefs will provide protection under Title VII. The
religious belief may be newly adopted, inconsistently observed, not part of a
formal church or sect’s religious practice, or different from the commonly
followed tenants of the individual’s religion. As an example of the broad
interpretation of sincerely-held religious beliefs, courts have determined that
veganism may constitute a religion where an employee protests receiving a
vaccine containing animal products, such as eggs.
For employees who seek an exemption from mandatory vaccines
based on their disabilities, the employer may ask for medical documentation
corroborating the disability. Some examples of disabilities that may
preclude employees from receiving certain vaccinations include life-threatening
allergies, diseases that compromise the employee’s immune system, or – in the
case of a recent Third Circuit Court of Appeals case – a severe and
well-documented anxiety associated with the side effects of receiving vaccines.
Once an employer determines that an employee is objecting to
a mandatory vaccine based on a sincerely-held religious belief or documented
disability, the employer must determine whether allowing the employee an
exemption from the vaccine creates an undue burden on the organization.
For exemptions based on disabilities, the employer may also similarly consider
if the exemption would create a direct threat to the employee, his or her
coworkers, or the organization’s patients. This inquiry is often directly
related to the employee’s position. While it may be feasible to exempt a
hospital billing clerk from mandatory vaccines, the same is likely not true for
a pediatric nurse working with young patients who are particularly vulnerable
in the NICU.
The employer should also consider if there are alternatives
that could sufficiently protect the employee and patients short of requiring
the vaccine, whether it be requiring the employee to wear a mask or
transferring the employee to a position with less patient contact. If the
employer determines that exempting the employee will create an undue burden, it
can require the vaccine as a condition of further employment, but this decision
should be documented with a clear explanation as to why the vaccine is
job-related, no more intrusive than necessary and consistent with business
necessity. The employer must also monitor and ensure that it conducts the
exemption consideration and decision process consistently for all employees.
The key to handling requests for exemptions is to ensure
that the consideration focuses on the specific concerns of the particular
employee and encompasses an open and back-and-forth dialogue with the
employee. Sometimes learning more about the employee’s specific concerns
will lead to a solution. For example, an employee objecting to a vaccine
on religious grounds because the vaccine contains animal cells may be willing
to accept an alternative version of the vaccination that does not contain the
offending material.