Monday, November 7, 2016

Mandatory Vaccination: Public Health vs. Individual Rights

By Charles S. Johnson
Daily Report
November 7, 2016

The Centers for Disease Control and Prevention (CDC) has long recommended that all health care workers receive an annual influenza vaccination. Throughout the United States, employers in the health care industry have experimented with strategies to encourage voluntary influenza vaccinations of health care workers. However, voluntary immunization policies have not had a significant impact on the overall coverage rate. During the 2010-2011 flu season, for example, the CDC found that 95 percent of health care workers received the flu shot when their employer required it but, when vaccinations were made voluntary, the rate of immunization fell to less than 64 percent. Beginning in 2011, the Joint Commission began to require that health care facilities implement mandatory flu shot policies but acknowledged the need to allow some employees to decline.

The goal of universal vaccination of health care workers remains elusive, partially because the available vaccine may sometimes be in short supply, requiring employers to establish criteria for prioritizing those employees who should be first to receive the available vaccine, and partially because vaccination mandates sometimes conflict with applicable collective-bargaining agreements. In addition to these institutional concerns, certain individual rights concerns have arisen which must be accommodated in the development of any employee vaccination policy, and the need for such accommodation has produced a new wave of litigation.

 

Accommodation Based on Medical Contra-Indication


Title I of the Americans With Disabilities Act prohibits discrimination by employers on basis of disability. Under Title I, discrimination includes the failure to provide a "reasonable accommodation" for a disabled individual, unless such accommodation imposes "undue hardship" on the employee. The EEOC has advised that 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." The EEOC also has asserted that a covered employer may not compel all of its employees to take the influenza vaccine, regardless of their medical conditions, but that such an employer may require employees to wear personal protective equipment (such as employer-provided non-latex gloves or gowns designed for individuals who use wheelchairs). The CDC has recommended exemptions with respect to persons with severe allergy to vaccine components (such as chicken eggs), persons with a history of severe reaction to an influenza vaccination, persons less than six months old and persons with a history of Guillain-Barré Syndrome.

 

Accommodation Based on Religious Grounds


Title VII of the Civil Rights Act of 1964 prohibits employer discrimination based on religion and requires an employer to accommodate sincerely-held religious practices that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer. For purposes of religious accommodation under Title VII, undue hardship is defined by the courts as "more than de minimis" burden on the operation of the employer's business. This de minimis standard is lower than the standard than under ADA. The First Circuit is reviewing a district court decision which held that it would be an undue burden to require a hospital to permit an unvaccinated employee to have contact with emergency room patients. Robinson v. Children's Hospital of Boston (2016).

 

Tips for Drafting Exemption Policies


A policy exemption based on medical contra-indication should proceed from a clear definition of the population for whom vaccination is mandated (e.g., will the mandate apply to employees who are not exposed to sensitive areas and vulnerable populations?), the circumstances under which a medical exemption may be sought (e.g., with reference to an objective standard such as the manufacturer's prescribing information or current CDC guidelines); a clear definition of the proof needed to qualify for an exemption (e.g., the kind of medical provider from whom a signed statement is acceptable and whether a statement from a neurologist is required with respect to exemptions related to Guillian Barré Syndrome); a clear differentiation between those exemptions which must be sought annually vs. those exemptions which remain in effect from year to year absent changed circumstances; and a clear definition of the available vaccine alternatives (e.g., if unvaccinated persons are required to wear face masks, how such a requirement will be enforced?).

A religious exemption policy should include a clear definition of who is entitled to the exemption and who is not, and it should require an individualized determination with respect to each application. Many policies require that an application for a religious exemption should include a supporting statement by a religious leader, but the EEOC does not favor such a requirement. The EEOC also suggests that an employer should ordinarily assume that an employee's request for a religious accommodation is based on a sincerely-held religious belief.

However, the Third Circuit is currently reviewing Fallon v. Mercy Catholic Medical Center (2016), one of many decisions regarding an exemption based on a belief which is purely personal, political, economic or sociological, rather than spiritual and other-worldly. In some cases, exempt employees are accommodated with the condition that they wear face masks, although some have suggested that such masks constitute a religious stigma. One court recently held that it was reasonable to accommodate an exempt person with the opportunity to apply for another work assignment (Robinson, supra).

A successful religious exemption policy should proceed from a broader policy that narrowly defines the population for which vaccination is mandatory. The EEOC has recently challenged the compulsory vaccination of individuals who have no contact with vulnerable populations. See, e.g., E.E.O.C. v. Bay State Medical Center, Inc. (2016) (involving a hospital's human resources employee who worked in a separate administrative services building and had no apparent patient contact); EEOC v. Mission Hospital, Inc. (2016) (involving of a pre-school teacher in a hospital's child development center who had no apparent patient contact).

Health care employers, perhaps more than any other category of employers, have strong reasons to assure that precautions are taken to protect their customers and their employees from the risk of infectious disease. However, recent enforcement actions, brought by the government and on behalf of private citizens, illustrate that our society has not yet established an appropriate balance between the value of public health and the value of individual liberty.

 


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