By Debra Dawahare
The U.S. Center for Disease Control (“CDC”) reports that between August and October 2009, there were nearly 5,000 flu-related hospitalizations nationwide, with 24% of such admissions affecting persons aged 25-49. The New York Department of Health has issued emergency regulations, effective as of August 2009, requiring healthcare workers to submit to mandatory flu vaccinations as a condition of continued employment, unless the workers have no patient contact or suffer from a serious health condition for which a flu vaccination is contraindicated.
Is it legal for an employer to require employees to have vaccinations? And even if it is legal, is it advisable? An employer who adopts a mandatory vaccination policy risks:
• ADA claims, based upon forced revelation of health conditions that would make a vaccination dangerous to a worker
• Religious discrimination claims, from those whose sincerely held religious beliefs would prevent them from taking vaccinations
• Workers’ compensation claims, from workers who suffered illness, allergic reactions, or other side effects from the mandatory vaccinations
• Common law tort claims, such as claims for invasion of privacy, intentional infliction of emotional distress, or negligence
The EEOC has recently issued a technical assistance document entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, available on the agency’s website at http://www.eeoc.gov. According to this document, even during a pandemic, an ADA-covered or Title VII-covered employer may not compel all of its employees to take vaccinations as a condition of continued employment, nor may it require symptom-free employees to disclose whether they have underlying medical conditions that would prevent them from taking a vaccination. Employers may, however, require employees to telecommute, to observe specific hygienic practices such as hand sanitizing at work, and to wear protective equipment such as gloves or masks. Employers may also send ailing employees home to recover.