Legal Opinion: Your employer CAN require you to get vaccinated –some exclusions: religion, disability, "improperly vetted vaccine"

EARL NASH, WTFG Legal Correspondent

Can employers mandate vaccinations of employees?

 "Yes." says the author (Michels)  in a recent article, "Employers ask: Can we require Swine Flu Shots For Workers."

 
In the private arena "the law is pretty well established" regarding an employer's right to mandate vaccinations. If an employer can establish a legitimate business need or objective, he said, vaccinations against various illnesses can be a legitimate job qualification.

However, he added, employees may be able to challenge the uniqueness of the H1N1 vaccine, which has not been tested in the standard way:

 "The question will be...has this been properly licensed, or are we requiring people to get vaccinated with something that is either experimental or not properly vetted," Michels said. "I think that's an open issue."

“The better question is what if employees refuse? They will be considered insubordinate. If they have a right to a due process type hearing, such as arbitration, I could not imagine that any arbitrator would impose a severe form of discipline unless the facts were extreme-say when the employee may work with high risk patients.” (Mitchell H. Rubinstein, http://lawprofessors.typepad.com/adjunctprofs/)

But, a subsection of recent publication, EEOC Issues Technical Assistance Document on Pandemic Planning in the Workplace (http://www.eeoc.gov/facts/pandemic_flu.html) suggests that mandated vaccination of employees may be trumped for religious reasons and for disabled persons:

  5.     May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).⁽³⁶⁾

The report also mentions several related factors:

Is the flu a “direct threat”?

“…if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat.”

DIRECT THREAT

A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”⁽²⁰⁾If an individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA.

Assessments of whether an employee poses a direct threat in the workplace must be based on objective, factual information, “not on subjective perceptions . . . [or] irrational fears” about a specific disability or disabilities.⁽²¹⁾The EEOC’s regulations identify four factors to consider when determining whether an employee poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm.⁽²²⁾

DIRECT THREAT AND PANDEMIC INFLUENZA

Direct threat is an important ADA concept during an influenza pandemic.

Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.

During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?

Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.

During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?

Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.

During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

Example E: During an influenza pandemic, an employer directs a supervisor to contact an employee who has not reported to work for five business days without explanation. The supervisor asks this employee why he is absent and when he will return to work. The supervisor’s inquiry is not a disability-related inquiry under the ADA.

AFTER A PANDEMIC

May an ADA-covered employer require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work?

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.http://www.eeoc.gov/facts/pandemic_flu.html