Time & Attendance
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By Max Mihelich
Apr. 23, 2015
Vaccinations are a hot topic of debate across the country, often centering on whether parents should have a choice in vaccinating their children rather than having the shots be required by local governments. But parents are not the only group with a vested interest in this topic. According to legal experts, certain employers across various industries have legitimate reasons to worry about the immunity of their workforce.
Although an employer — such as a hospital — may have a good reason to want its workforce vaccinated against a specific disease, the legalities are not black and white.
“It’s a complicated answer to what should be a pretty simple question,” said Rob Niccolini, co-chair of law firm Ogletree Deakin’s Healthcare Practice Group. “The answer really is ‘yes,’ but there are a lot of legal and practical issues that need to be addressed. There’s nothing in federal or state law that prohibits employers from requiring vaccinations, per se. But there are a number of laws that complicate the matter.”
For example, Title VII of the Civil Rights Act of 1964 — which prohibits discrimination on the basis of race, color, religion, sex and national origin — creates a major complication in the form of religious objections for workplace policies requiring vaccinations. An employer would be legally obligated to provide an accommodation for the vaccination to an employee with a sincerely held religious belief, Niccolini explained.
The Americans with Disabilities Act also complicates the matter on the legal end. For medical exemption, the question for employers is whether an employee has a medical condition that requires an accommodation and prevents that worker from being vaccinated.
Both federal laws trump common hospital workplace policies that require workers take a yearly influenza vaccination. “Most flu shots are egg- or chicken-based. So an employee with an allergy to eggs [has] a medical reason why they can’t take the flu vaccine,” Niccolini said.
There are also practical obstacles in the way of employers that would like to require vaccinations for their workers. Near the top of the list is a small but not insignificant public concern over the safety of vaccinations, which the medical community is currently working hard to debunk.
According to the Centers for Disease Control and Prevention, “Vaccination is a common, memorable event, and association of events in time often signals cause and effect. While some of the sickness or reactions that follow vaccination may be caused by the vaccine, many are unrelated events that occur by coincidence after vaccination. Therefore, the scientific research that attempts to distinguish true vaccine adverse events from unrelated, chance occurrence is important.”
The older generations of baby boomers and traditionalists are likely to support vaccinations because they have memories of life before vaccines for many diseases were developed. They were able to experience firsthand the benefits vaccinations for diseases like the measles, according to Pew Research.
Before the first licensed measles vaccine in 1963, hundreds of thousands of measles cases were reported annually in the U.S. In 1958 alone, there were more than 750,000 cases. By 1968, that number fell to about 22,000, according to an analysis of data from the CDC.
Today, measles cases are extremely rare, but the CDC reported a spike in 2014, with more than 600 measles cases in the United States — the first such jump in more than a decade.
The demand for required workplace vaccinations varies outside of the health care industry. Employers whose employees work in a traditional office setting tend to lack office policies requiring vaccinations.
“In a pure office context, where the possibility of the spread of disease is less and there’s less exposure to a vulnerable population, whether that’s patients or young children, from a cost-benefit analysis, there’s not much of a push toward mandatory vaccinations,” Niccolini said. “From my experience, the question has not only been whether an employer can require a vaccination, but also is this something they even want to pursue from a cost-benefit standpoint.”
As a potential workaround to Title VII and the ADA, it is possible to ask a job candidate for proof of vaccination as a job requirement. However, Niccolini strongly cautioned against this method because an employer could run afoul of Title VII and, more importantly, the ADA. An employer could ask illegal questions that are likely to elicit information about the existence, nature or severity of a disability.
“Asking somebody whether they’ve been vaccinated is not likely to elicit that kind of information. In fact, Equal Employment Opportunity Commission guidance doesn’t even mention asking about vaccinations being improper,” Niccolini said. “But if you’re going to ask that question to all job applicants, you run the risk of them responding with medical information about the existence, nature or severity of a certain medical condition.”
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