Unvaccinated Workers: An Employer’s Rights And Obligations

Vaccines for children have been front-page news around the country after the breakout of measles at Disneyland.  Rightfully, the focus has been on children who are unvaccinated and the effect that it has on schools and places of public accommodation.  But, what about unvaccinated adults?  Can an employer require that its employees are vaccinated?

How Do Vaccines Work?

Before reviewing the law on the issue, a basic understanding how vaccines work is critical.   According to the Centers for Disease Control and Prevention (CDC), a  vaccine ordinarily contains the same germ that causes a diseases; for example, the MMR vaccine contains measles, mumps and rubella microbes.  Those small quantities of microbes stimulate a person’s immune system to produce antibodies, just as it would if an unvaccinated person was exposed to the disease.  In turn, the antibodies ordinarily cause an individual to develop immunity to that disease, without having to get the disease first. 

Over time, a small group of medical professionals began to question the health benefits of vaccines.  With children, some professionals relied on a now thoroughly discredited study suggesting a link between vaccines and autism in children.  Others questioned the sensibility of deliberately exposing oneself to these dangerous diseases.  But throughout the CDC has been clear – and the medical community now strongly agrees – that vaccines are safe and necessary.

Until now, the focus on vaccines has largely been on children, as unvaccinated children are surely the most vulnerable population.  But recent studies suggest that adults should also be concerned.  According to a study of the California Department of Public Health, adults aged 20 and older comprise more than half of the confirmed cases of measles from the recent outbreak are in adults.  

Does The Law Protect Unvaccinated Workers?

Since adults are also vulnerable population, does the law allow employers to protect their workforces by mandating that employees become vaccinated?  The Occupational Safety and Health Administration (OSHA) and many states, including California require hospitals merely to offer vaccines for certain diseases, like Hepatitis B, Influenza, Measles/Mumps/Rubella, and Chickenpox (varicella) to their employees, but they are not required to administer them.  And, there are no other state laws requiring employees to be vaccinated as a condition of employment.

State and federal disability discrimination laws are equally silent on the issue.  While they generally prohibit discrimination against an employee or applicant for employment individual because he or she has a “disability.”  But those laws define the term disability as including a “physical or mental impairment” which limits a person’s ability to perform a “major life activity.”  There is not a single reported case about whether the lack of antibodies created by a vaccine are a protected impairment.

The closest that the Supreme Court has come to dealing with this issue was in Bragdon v. Abbott, a 1998 decision in which the Court found that HIV-positive individuals did suffer from a “disability” under the federal Americans With Disabilities Act (ADA).  The presence of the HIV virus in a person’s blood, however, is not the same as the absence of an antibody.  Moreover, the Bragdon case was decided on the basis that HIV infection limits a person from engaging in reproductive activity; the same cannot be said of the unvaccinated, who are seemingly capable of doing everything that vaccinated people can do.  So, it is unlikely that the decision not to be vaccinated creates a protected disability and, as a result, employers can almost certainly require that employees be vaccinated from certain diseases.

Nor would the federal and state disability discrimination laws prevent an employer from inquiring whether and when an employee was vaccinated.  The ADA, for example, prohibits employers from “making inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.”  In 2005, the Equal Employment Opportunity Commission, the federal agency which enforces the ADA, issued a Guidance setting forth its opinion that the ADA prohibits questions that are “likely to elicit information about a disability,” such as questions about how an employee became disabled, his genetic makeup, or his worker’s compensation history.  Notably, the Guidance makes no reference to questions about vaccines and given that the unvaccinated are most likely not protected by disability discrimination laws, it seems doubtful that inquiries about vaccinations would be prohibited.

Two likely rules can be drawn from this.  First, under both federal and state law, employers are within their rights to ask employees whether they have recommended vaccines; and, second an employer would be within its rights to refuse work to an unvaccinated worker.

The same is likely true with vaccine boosters.  For example, among other things, the CDC recommends that adults get a flu vaccine every year and that certain adults get a MMR booster at least one time in their adult life.  Employers are seemingly within their rights to ask employees if they have received the recommended boosters and to require those boosters as a condition of employment.

Can Employees Claim A Religious Exemption From Vaccines? 

There are certain religions which require adherents to avoid modern medicine, such as Christian Scientists.   But, the number of Americans claiming a religious or philosophical exemption from vaccines is much higher than the Christian Scientist population in this country, which suggests that most individuals seeking a religious exemption from vaccinations requirements (as in schools) are not doing so because of a sincerely held belief.

Still, the question must be asked – what if an employee claims that his religion prohibits him from getting vaccinated?  Federal and state laws do require employers to provide reasonable accommodations for sincerely held religious beliefs of employees.  But, given the rarity of religious beliefs on vaccines, it is unlikely that an employer will be faced with this issue – most “religious beliefs” about vaccines will not be “sincerely held” because the vast majority of religions have no requirements about vaccines.

In the rare case, however, the legal issue will be how, of if, such an employee can be accommodated.  And, in all likelihood, the answer is that they cannot because there are no other options available; either an employee gets vaccinated or he does not.  The vaccine itself is a relatively painless injection with minimal side effects and the potential harm to a workforce of an unvaccinated employee is significant.  While courts have not addressed the issue yet, it does not seem likely that they would side with employees on this public health issue.

What Does The Future Hold For Vaccines In The Workplace?

Employers are not required to mandate vaccination for employees.  Given the recent measles outbreak, the trend is surely towards imposing such requirements, especially in workplaces that deal with vulnerable populations, like schoolteachers and hospital workers.  According to numerous reports, KinderCare is now going to require all employees who work with infants up to 15 months old in its 1,500 day care centers to get the measles vaccine, after several children recently fell ill with the measles.

KinderCare learned its lesson the hard way after six children and one employee were infected and, of course, after what will inevitably be a particularly damaging media story.  While there is no current requirement that employers prohibit unvaccinated employees from working, some politicians have talked about imposing vaccine requirements for schoolchildren and it’s not difficult to think that workplace requirements would be that far behind.  Moreover, the “general duties” clause of the Occupational Safety and Health Act of 1970 requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” and it is not inconceivable that, if pressured, OSHA could opine that a fully vaccinated workplace is a prerequisite to compliance with that law.

Until then, the law will remain deliberately murky in this area.  But if recent events are any indication, this issue is not going to go away and employers will be faced with important decisions that will affect worker safety, morale, and the public perception of employers.

- Dan Handman

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