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Mandatory Inoculation of Health Care Workers and Religious or Disability Discrimination

Mandatory Inoculation of Health Care Workers and Religious or Disability Discrimination


Health Care Law Note
(December, 2012)

To prevent the spread of disease to patients and protect their work forces, many health care providers are instituting policies mandating inoculation of their staff. In some instances, the law speaks to whether an employer is obligated to address the issue of inoculation of its workforce at all. If so, must it "mandate" a vaccine or merely make it available? Must it provide the vaccine at no cost?1 Even when a statute requires an employer to mandate a vaccine, it typically provides employees with the option to decline the vaccine for a range of reasons.2 The legal landscape on these issues is likely to continue to change over the next few years.3 Thus, while prudent from a health care perspective, care must also be taken from a legal perspective to ensure that enforcement of blanket immunization policies in the workplace does not violate existing law.

In addition to statutes that directly address the provision of vaccines to employees, Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination based on race, color, religion, sex and national origin. When mandatory vaccines are at issue, the religious exemption is sometimes raised. The argument is that an employee's religious beliefs prohibit the employee from being immunized.

Similarly, the Americans with Disabilities Act (ADA) prohibits discrimination based on disability, which is defined under the ADA as a mental or physical impairment that substantially limits a major life function. Recent developments in ADA law have interpreted the term "disability" broadly. An employee may argue that a health condition amounts to a disability and prevents him from being immunized.

Both statutes require an employer to "reasonably accommodate" the religion / disability of the employee in the terms and conditions of employment. However, if the employer is able to show that a requested accommodation (e.g. exemption from mandatory immunization) would constitute an "undue hardship," to its operation, the employer is not required to exempt the employee.

Even though the same words are used in both laws, proving "undue hardship" to override a religious objection is not the same as proving "undue hardship" in the case of disability. Undue hardship in the case of religion is defined as "more than de minimis cost" to the employer's business. Undue hardship in the case of disability requires the employer to show a far greater burden; for example, that the nature of the employer's services would change.

In either case, however, undue hardship should not be assumed, even in a healthcare setting. An individualized assessment of the facts must be done to determine whether exemption from vaccination is possible for that person without creating undue hardship. For example, before refusing to hire an employee who will not be immunized due to religious beliefs, an employer should consider whether it could impose alternative infection control practices in lieu of vaccination, such as requiring the exempted employee to wear a mask at all times while engaged in patient care, or whether it could employ the individual to do non-patient contact duties. Note, however, that neither statute requires the employee to adopt an employee's preferred accommodation if another suitable accommodation that would cause less hardship to the employer is available. The point is that taking an adverse employment action against an applicant or employee who fails to be inoculated due to religion or disability without conducting an individualized assessment of the facts may constitute a violation of law.

Health care facilities that mandate vaccinations must be receptive to requests for accommodation due to religious beliefs or disability. Analysis of these requests must be on a case by case basis and is necessarily dependent on the state of the law at the time, as well as on the fact circumstances.

For additional information contact Julie Theall Earp at 336-378-5256. Smith Moore Leatherwood LLP

 

 

1For example, the OSHA Bloodborne Pathogens Standard, 29 CFR 1910.1030, applies to workers who have reasonably anticipated contact with blood or other potentially infectious materials and are, therefore, at risk of being infected with Hepatitis B virus (HBV). Among other things, employers must make the Hepatitis B vaccination available at no cost to these workers, but the vaccine can be declined.

2For example, the South Carolina Department of Health and Environmental Control ("DHEC") Standards for Licensing Nursing Homes provide that all direct care staff performing tasks involving contact with blood, blood contaminated body fluids, other body fluids, or sharps must have the Hepatitis B vaccination series unless the vaccine is medically contraindicated or an individual is offered the series and declines. Direct care staff must also have an annual influenza vaccination unless medically contraindicated or if the staff declines. In either case, the decision must be documented. DHEC Regulation 61-17 Section 1806. Similarly, North Carolina General Statutes 131D-9 and 131E-113 provide that adult care homes and nursing homes have requirements that employees be immunized annually against influenza. The adult care home or nursing home must notify the employee of the requirement and request that the employee agree to be immunized against the influenza virus. However, the adult care home or nursing home cannot require the employee to receive the immunization if it is medically contraindicated, it is against the employee's religious beliefs or if the individual simply refuses.

3For example, the Joint Commission issued Standard IC.02.04.01, effective July 1, 2012, which provides that some programs must vaccinate licensed independent practitioners and staff for the influenza virus. The new Standard requires affected facilities to do the following:

  • Establish an annual influenza vaccination program that includes, at a minimum, staff and licensed independent practitioners.
  • Provide access to influenza vaccinations on site.
  • Educate staff and licensed independent practitioners about influenza vaccination, non-vaccine control measures (such as hand hygiene, sneeze and cough etiquette), and the diagnosis, transmission, and potential impact of influenza.
  • Annually monitor vaccination rates and reasons for nonparticipation in the organization's immunization program.
  • Implement enhancements to the program to increase participation.

Authors
Julianna Theall Earp
T (336) 378-5256
F (336) 378-5400
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