February 27, 2015

Dan Handman Tells the Daily Journal Whether or Not Employers Can Require Their Employees To Be Vaccinated


Originally published in the Daily Journal, February 26, 2015. Copyright 2015 Daily Journal Corporation, reprinted with permission.

Can employers require vaccinations?
by Daniel Handman

Vaccines for children have been front-page news around the country ever since the breakout of measles at Disneyland earlier this year. Rightfully, the focus has been on children who are unvaccinated and the effect it has on schools and places of public accommodation.
According to reports, KinderCare Learning Centers, a daycare, is requiring all employees who work with infants up to 15 months old to get the measles vaccine after several children fell ill with the measles. KinderCare learned its lesson the hard way after six children and one employee were infected and, of course, a damaging media story.

So what about unvaccinated adults? Can an employer require its employees to be vaccinated?

How Does a Vaccine Work?

Before reviewing the law, a basic understanding how vaccines work is critical. According to the Centers for Disease Control and Prevention, a vaccine ordinarily contains the same germ that causes a disease. 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. The antibodies ordinarily cause a person 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 dangerous diseases. But throughout, the CDC has been clear – and the medical community now strongly agrees – that vaccines are safe and necessary.

While the focus on vaccines has been on children, 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.

Does the Law Protect Unvaccinated Workers?

So does the law allow employers to protect their workforces by mandating that employees become vaccinated? The Occupational Safety and Health Administration 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. There are no other state laws requiring employees to be vaccinated as a condition of employment.

State and federal disability discrimination laws are silent on the issue. They generally prohibit discrimination against an employee or applicant for employment because he or she has a “disability.” But those laws define “disability” to include a “physical or mental impairment” which limits a person’s ability to perform a “major life activity.” There is no reported case about whether the lack of antibodies created by a vaccine are a protected impairment.

The closest the U.S. Supreme Court has come to dealing with the issue was in Bragdon v. Abbott, 524 U.S. 624 (1998), where the court found that HIV-positive individuals suffered from a “disability” under the federal Americans with Disabilities Act. The presence of the HIV virus in a person’s blood, however, is hardly 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 capable of doing everything vaccinated people can do. So, it’s unlikely the decision not to be vaccinated creates a protected disability and, as a result, employers can almost certainly require 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 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 issued guidance setting forth its opinion that the ADA prohibits questions “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. The guidance makes no reference to questions about vaccines. Given that the unvaccinated are most likely not protected by disability discrimination laws, it seems doubtful that inquiries about vaccinations would be prohibited.

Two 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; second, an employer would be within its rights to refuse work to an unvaccinated worker.

The same is likely true with vaccine boosters. Among other things, the CDC recommends that adults get a flu vaccine every year and that certain adults get a MMR booster at least once 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.

A Religious Exemption from Vaccines?

Federal and state laws require employers to provide reasonable accommodations for an employee’s sincerely held religious beliefs. Some religions require adherents to avoid modern medicine, such as Christian Science. But few religions do this, so many employees seeking an exemption from vaccination requirements may not do so based on a sincerely held religious belief, so it’s unlikely an employer will face this issue.

But what if an employee does claim his religion prohibits him from getting vaccinated? In all likelihood, such an employee cannot be accommodated because there are no other options available – either an employee gets vaccinated or 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, it seems unlikely they would side with employees here.

What Does the Future Hold?

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. Some lawmakers have already discussed as much.

Furthermore, 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.” 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 murky. But if recent events are any indication, this issue is not going to go away and employers will face important decisions that will affect worker safety, morale and the public perception of employers.

Daniel H. Handman is a partner with Hirschfeld Kraemer LLP, based in the firm’s Los Angeles office. You can reach him at DHandman@hkemploymentlaw.com.