It’s cold and flu season. If you are considering mandating vaccinations, you must not only consider the potential risks and benefits, but the legal feasibility. The Equal Employment Opportunity Commission (EEOC) has stated in informal guidance that even in a pandemic, certain employees may be exempt from mandatory vaccination under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), or the Pregnancy Discrimination Act (PDA).
An ADA-qualifying disability may exempt an employee from mandatory vaccination. In other words, under the ADA, the reasonable accommodation provided to the employee could be not having to receive the vaccination. As always, an undue hardship relieves the employer from having to provide the accommodation. In this scenario, an undue hardship could be an accommodation that would pose significant difficulty or expense, taking into account the resources available to the employer and the nature of the employer’s business. For example, a receptionist who works in a medical setting with a vulnerable population who is allergic to the vaccine may be made safe only through a respirator and other personal protective equipment. If this is cost-prohibitive, an employer may not need to provide it. Further, if the employee cannot otherwise be made safe, a direct threat analysis may be appropriate, and the employee could theoretically be sent home until the threat is mitigated. Fortunately, these situations are rare, but you should always call MSEC before attempting to navigate these waters yourself.
Similarly, under Title VII, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from taking the flu vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. In theory, an employer need not provide as much for religious accommodation as for disability. A religious accommodation that requires more than minimal cost is considered an undue hardship. However, the EEOC and courts take a very broad view toward what constitutes a Title VII religious belief. In addition to traditional, organized religions, this can include beliefs that seem illogical or unreasonable to others and beliefs or practices where few (or no) other people adhere to them.
Regarding hospitals, the EEOC clarified that a Title VII religious accommodation analysis for flu and other vaccinations could include the assessment of the public risk posed, the availability of alternative means of infection control, and the number of employees who actually request accommodation.
In a March 5, 2012, informal guidance letter, the EEOC addressed employer-mandated vaccination of pregnant hospital employees and protections under the Pregnancy Discrimination Act. The EEOC commented that under certain facts, a pregnant employee could refuse vaccinations. The EEOC also cautions that failing to accommodate a pregnant employee’s refusal to be vaccinated may result in a disparate impact claim. A pregnant employee could also allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse her from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination. Keep in mind that a pregnant employee may have an ADA-qualifying disability such as gestational diabetes or preeclampsia. Given the EEOC’s focus on pregnancy as demonstrated by its July 2014 pregnancy guidance, employers should exercise caution before mandating vaccines.
Even if an organization is not subject to the ADA, Title VII, and/or the PDA, under the Colorado Anti-Discrimination Act, it is safest to apply the same considerations. Other states may have similar laws, so check before proceeding. If an employee has a negative reaction to an employer-sponsored vaccination, a workers’ compensation claim might also apply.
Healthcare-industry and public employers are subject to federal or state regulations, and public health and safety concerns could factor in. If there are collective bargaining agreements or employment contracts, they alter the at-will nature of employment. Review the terms for possible breach of contract arguments that could be raised against mandatory vaccinations. Remember privacy concerns and keep confidential all medical and disability-related information. People generally resist being told what to do, so even if you’re on solid legal footing, expect pushback.
What Are Some Options Other than Mandatory Vaccinations?
Employers might want to consider a variety of alternative approaches to address seasonal viruses and communicable disease other than requiring vaccinations. For example:
Encourage voluntary vaccinations by making it easy and affordable for employees.
Consider paid vaccinations. Check with the company health insurance provider to see if your plan covers the cost of vaccinations. If not, consider making company paid vaccinations part of your plan in the future.
Think about offering employer sponsored vaccinations during paid work hours and at the worksite.