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.
