Mandatory Flu Shots?

Although it is only July, it is not too early to start thinking about flu season. Mandatory vaccinations have been the topic of much debate in recent years. This is particularly true for healthcare providers.

Background

During the panic associated with the swine flu, some states responded by mandating that healthcare workers receive vaccinations. Most states already require healthcare workers to receive vaccines for measles, mumps and polio. A number of hospitals and healthcare providers have also begun to mandate flu vaccination. Under these mandatory programs, failure to get a “flu shot” can result in termination.

Healthcare providers have legitimate concerns about the spread of influenza. It is a viral illness that can be transmitted through sneezing, coughing, air droplets and hand contact. Those at greatest risk for developing complications from the flu include the young, the elderly and those with pre-existing medical conditions. An individual infected with the illness can be contagious even before symptoms appear. As a result, numerous health authorities and experts recommend that healthcare workers be immunized because they work in highly contagious
environments, and deal with patients who are at a high risk of contracting the flu. The Department of Health and Human Services (HHS) advisory committee recommends that healthcare employers mandate flu vaccinations. Regardless of whether the state mandates it, healthcare providers are required to maintain an “active program for the prevention, control, and investigation of infections and communicable diseases” to receive funding through Medicare and Medicaid. 42 C.F.R. ' 482.42.

Legal Challenges

Although mandatory vaccination programs are encouraged for the health of the patients, they do raise the risk of legal challenges and practical considerations with respect to the employee. Over the years, mandatory vaccination laws have been challenged in a variety of manners. Parents have challenged the mandatory vaccination requirements of many schools on religious grounds, claiming that a school's refusal to allow a religious exemption violates the First Amendment of the U.S. Constitution. Military personnel have challenged the military's mandatory vaccination requirements claiming religious objections, and the right to refuse medical treatment. Most of the challenges revolve around civil liberties, but vaccinations can also raise health risks. Military personnel, who are often among the first to receive new vaccines, have also attacked such programs under a law that prohibits the use of investigational new drugs on military personnel without the individual's consent.

These challenges for the most part have been unsuccessful. In 1905, the United States Supreme Court upheld mandatory small pox vaccinations over a constitutional challenge. See Jacobson v. Massachusetts, 197 U.S. 11, 31-32 (1905).

Issues for Employers

For employers, mandatory vaccinations raise issues under both the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. For some individuals, either because of a disability or other medical condition, vaccination may not be medically appropriate. Even if such condition does not rise to the level of a disability under the ADA, the employer may need to consider whether an accommodation (such as an exception to any mandatory program) should be offered for an individual who is not able to receive the vaccine. In such cases other precautionary measures may be required such as masks, and avoiding work around certain patient populations, as long as such measures are uniformly required for unvaccinated individuals.

Some employees may object based on religious reasons. This too may impose a duty to accommodate. In order to obtain a religious accommodation, the employee must have a sincerely held, bona fide religious belief. Whether a belief or practice is religious is often broadly construed. Most courts will find a belief to be religious if it occupies the same place in the life of the individual as an orthodox belief in God holds in the life of an orthodox individual. The EEOC defines a religious practice to include moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views. The fact that a certain belief is not held by a religious group or even by the religious group to which the individual claims to be associated is not dispositive, according to the EEOC. An employer often has limited ability to challenge the “religious” nature of a belief. What constitutes a religious belief under Title VII is often given broader consideration by the courts than the same courts would extend religious protection under other circumstances.

Assuming an employee has a sincerely held religious belief against vaccination, the employer must consider whether such belief can be accommodated without posing an undue hardship. An undue hardship is more than a de minimus cost or burden. The burden of proving an undue hardship for religious accommodations is a lesser burden than that required for proving an undue hardship with respect to a request for a disability accommodation.

In the Courts

It remains to be seen whether courts will require healthcare employers to provide employees with an accommodation on mandatory flu vaccinations for religious reasons. Some courts have upheld mandatory vaccination programs over religious objections under the Constitution, finding the public interest to prevent the spread of disease outweighed the individual's free exercise of religious claim. Arguably, providing an exception to the mandatory flu vaccination as an accommodation may create more than a de minimus cost or burden, particularly if the risk to patients is high. Nevertheless, many institutions that provide for mandatory vaccinations provide some process for exemption based on religious beliefs or for those where the vaccine is medically contraindicated.

Other Issues

Aside from the potential legal challenges, mandatory flu vaccination programs also present other challenges for employers. Unions have been among the most vocal opposing mandatory vaccination programs. Instituting a mandatory program in a union facility can raise a bargaining obligation with the union. However, the larger issue is for the healthcare providers who are not unionized. A mandatory
program (like anything else that disgruntles workers) can become fodder for union organizing efforts. Healthcare remains a hot spot for union organizing and mandatory vaccines are just one more issue that unions are using to make their entrance. Employee education is, therefore, an important first step to any program. Garnering employee “buy-in” or acceptance of the program may help reduce employee and/or union backlash.

While mandatory flu vaccination programs are not unlawful, they do raise both legal and practical concerns that the employer should consider. For those employers or healthcare providers, who deal with patients for whom the flu is particularly dangerous, protection against the spread of the disease, particularly at its own facility, is a legitimate business concern.

Conclusion

Mandatory flu vaccination programs may be necessary not only to protect the employees who are more likely to come into contact with the virus, but more importantly, to protect the patients. Healthcare providers that are considering mandatory programs will need to consider the implications for all of those involved.

Patricia Anderson Pryor, a member of this newsletter's Board of Editors, is a Partner in the Cincinnati, OH, office of Jackson Lewis. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation. She is a frequent speaker at legal seminars and to employers and professional groups and has been featured on the radio broadcast, Employment Straight Talk.

Although it is only July, it is not too early to start thinking about flu season. Mandatory vaccinations have been the topic of much debate in recent years. This is particularly true for healthcare providers.

Background

During the panic associated with the swine flu, some states responded by mandating that healthcare workers receive vaccinations. Most states already require healthcare workers to receive vaccines for measles, mumps and polio. A number of hospitals and healthcare providers have also begun to mandate flu vaccination. Under these mandatory programs, failure to get a “flu shot” can result in termination.

Healthcare providers have legitimate concerns about the spread of influenza. It is a viral illness that can be transmitted through sneezing, coughing, air droplets and hand contact. Those at greatest risk for developing complications from the flu include the young, the elderly and those with pre-existing medical conditions. An individual infected with the illness can be contagious even before symptoms appear. As a result, numerous health authorities and experts recommend that healthcare workers be immunized because they work in highly contagious
environments, and deal with patients who are at a high risk of contracting the flu. The Department of Health and Human Services (HHS) advisory committee recommends that healthcare employers mandate flu vaccinations. Regardless of whether the state mandates it, healthcare providers are required to maintain an “active program for the prevention, control, and investigation of infections and communicable diseases” to receive funding through Medicare and Medicaid. 42 C.F.R. ' 482.42.

Legal Challenges

Although mandatory vaccination programs are encouraged for the health of the patients, they do raise the risk of legal challenges and practical considerations with respect to the employee. Over the years, mandatory vaccination laws have been challenged in a variety of manners. Parents have challenged the mandatory vaccination requirements of many schools on religious grounds, claiming that a school's refusal to allow a religious exemption violates the First Amendment of the U.S. Constitution. Military personnel have challenged the military's mandatory vaccination requirements claiming religious objections, and the right to refuse medical treatment. Most of the challenges revolve around civil liberties, but vaccinations can also raise health risks. Military personnel, who are often among the first to receive new vaccines, have also attacked such programs under a law that prohibits the use of investigational new drugs on military personnel without the individual's consent.

These challenges for the most part have been unsuccessful. In 1905, the United States Supreme Court upheld mandatory small pox vaccinations over a constitutional challenge. See Jacobson v. Massachusetts , 197 U.S. 11, 31-32 (1905).

Issues for Employers

For employers, mandatory vaccinations raise issues under both the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. For some individuals, either because of a disability or other medical condition, vaccination may not be medically appropriate. Even if such condition does not rise to the level of a disability under the ADA, the employer may need to consider whether an accommodation (such as an exception to any mandatory program) should be offered for an individual who is not able to receive the vaccine. In such cases other precautionary measures may be required such as masks, and avoiding work around certain patient populations, as long as such measures are uniformly required for unvaccinated individuals.

Some employees may object based on religious reasons. This too may impose a duty to accommodate. In order to obtain a religious accommodation, the employee must have a sincerely held, bona fide religious belief. Whether a belief or practice is religious is often broadly construed. Most courts will find a belief to be religious if it occupies the same place in the life of the individual as an orthodox belief in God holds in the life of an orthodox individual. The EEOC defines a religious practice to include moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views. The fact that a certain belief is not held by a religious group or even by the religious group to which the individual claims to be associated is not dispositive, according to the EEOC. An employer often has limited ability to challenge the “religious” nature of a belief. What constitutes a religious belief under Title VII is often given broader consideration by the courts than the same courts would extend religious protection under other circumstances.

Assuming an employee has a sincerely held religious belief against vaccination, the employer must consider whether such belief can be accommodated without posing an undue hardship. An undue hardship is more than a de minimus cost or burden. The burden of proving an undue hardship for religious accommodations is a lesser burden than that required for proving an undue hardship with respect to a request for a disability accommodation.

In the Courts

It remains to be seen whether courts will require healthcare employers to provide employees with an accommodation on mandatory flu vaccinations for religious reasons. Some courts have upheld mandatory vaccination programs over religious objections under the Constitution, finding the public interest to prevent the spread of disease outweighed the individual's free exercise of religious claim. Arguably, providing an exception to the mandatory flu vaccination as an accommodation may create more than a de minimus cost or burden, particularly if the risk to patients is high. Nevertheless, many institutions that provide for mandatory vaccinations provide some process for exemption based on religious beliefs or for those where the vaccine is medically contraindicated.

Other Issues

Aside from the potential legal challenges, mandatory flu vaccination programs also present other challenges for employers. Unions have been among the most vocal opposing mandatory vaccination programs. Instituting a mandatory program in a union facility can raise a bargaining obligation with the union. However, the larger issue is for the healthcare providers who are not unionized. A mandatory
program (like anything else that disgruntles workers) can become fodder for union organizing efforts. Healthcare remains a hot spot for union organizing and mandatory vaccines are just one more issue that unions are using to make their entrance. Employee education is, therefore, an important first step to any program. Garnering employee “buy-in” or acceptance of the program may help reduce employee and/or union backlash.

While mandatory flu vaccination programs are not unlawful, they do raise both legal and practical concerns that the employer should consider. For those employers or healthcare providers, who deal with patients for whom the flu is particularly dangerous, protection against the spread of the disease, particularly at its own facility, is a legitimate business concern.

Conclusion

Mandatory flu vaccination programs may be necessary not only to protect the employees who are more likely to come into contact with the virus, but more importantly, to protect the patients. Healthcare providers that are considering mandatory programs will need to consider the implications for all of those involved.

Patricia Anderson Pryor, a member of this newsletter's Board of Editors, is a Partner in the Cincinnati, OH, office of Jackson Lewis. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation. She is a frequent speaker at legal seminars and to employers and professional groups and has been featured on the radio broadcast, Employment Straight Talk.