As we continue through the fall season, some things are certain. The leaves are changing colors, there is pumpkin spice everything and there are flu shots. Many healthcare employers require employees to receive a flu vaccine. This issue will become more significant with the possible dual threat of COVID-19 and the flu. Once a COVID-19 vaccine is released, it is almost a certainty that some healthcare employers will require the COVID-19 vaccine in addition to the yearly flu vaccine.1
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However, a Gallup poll shows that approximately one-third of Americans are against getting a COVID-19 vaccine. Employers and employees are often at odds over mandatory vaccine policies.2 A question we commonly see at our law firm is: “Can we require our employees to receive a vaccine?” The simple answer to this question is yes, but with certain limitations.
Certain employees can refuse to receive a vaccine despite their employers’ requiring vaccines. Employees with a legitimate allergy, legitimate medical reason or a sincerely held religious belief for refusing a vaccine cannot be forced to receive a vaccine. Some locations may also have state and local protections that also apply in this situation.
Legitimate Allergy or Medical Condition
Employees with a legitimate allergy or medical condition that might prevent them from getting a vaccine may have a protected disability under the Americas with Disability Act (“ADA”).3 To be covered by the ADA, the employee must have a disability or at least be perceived by the employer as having a disability. For ADA purposes, a disability is defined as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person perceived by others as having such an impairment.4
Arguably, having a legitimate allergy or medical condition that would preclude an employee from safely receiving a vaccine would be a disability under the ADA. While these employees may refuse a vaccine, their employer can ask that the employee perform some other infection control technique. The key is to engage the employee in an interactive process to determine if a reasonable accommodation can be made that does not pose an undue hardship on the employer and that does not pose a direct threat to coworkers and patients.5
Employers may be able to provide reasonable accommodations for employees with disabilities that prevent them from receiving a vaccine. One of the most straightforward reasonable accommodations is always to require the employee to wear a mask while at work. Employees who have a disability and refuse to get a vaccine should also sign a formal waiver that their employer retains.
Sincerely Held Religious Belief
Title VII of the Civil Rights Act of 1964 protects an employee from interference with sincerely held religious beliefs by an employer. One of the basic tenets of the Church of Scientology is that disease can be cured or prevented by focused prayer. Some members may seek exceptions to mandatory vaccine policies. If an employee refuses to vaccinate based on a religious belief, the employer can always request that the employee wear a mask while at work. Employers must ensure that they do not discriminate against any employee based on their sincerely held religious beliefs. An employer cannot punish an employee for refusing to vaccinate or force the employee to get a vaccine because the employer disagrees with their religious beliefs.
However, this exception only applies to employees refusing a vaccine on the grounds of their religion. There are a good number of “anti-vaxxers” in the world that simply do not believe vaccines are safe. This is neither a religious belief, an allergy nor a medical condition. An employer can take disciplinary action against any person that refuses to be vaccinated due to perceived safety concerns or any other reason that would not be protected under the ADA or Title VII or similar federal, state and local laws. Additionally, an employer can discipline an employee who claims a religious exemption to vaccines but is only using religious exceptions as a cover for a personal choice.
State/Local Political Protections
Some states (we are aware of California and New York, but there may be others) and some municipalities have laws prohibiting discrimination based on political beliefs and lawful political activities. If you happen to live in an area with such a law, we do encourage you to speak with your local counsel about whether an “anti-vaxxer’s” stance against vaccines might possibly fall under any type of protected political activity in your area.
Takeaways for Employers
The time is now for employers to consider whether they want to adopt a mandatory vaccination policy or to review a mandatory vaccination policy that they may already have in place. Make sure all vaccine-related policies are up to date and consider including information about a possible COVID-19 vaccine. In enforcing any new or existing vaccine policies, employers should make sure that that they are complying with the ADA and Title VII protections that are afforded to employees, as well as any similar state and local protections that may be in place. All agencies that have adopted or are planning to adopt a vaccination policy must have an established procedure to handle employees’ requests for exceptions to mandatory vaccination policies.
With the possible dual threat of COVID-19 and the seasonal flu, mandatory vaccination policies may be more critical than ever. However, some employees may be hesitant to receive a COVID-19 vaccine. Employers must prepare now to determine their course of action with respect to flu vaccines, as well as when a COVID-19 vaccine is released.
Matthew Konya is an associate attorney with Page, Wolfberg & Wirth, LLC and has been involved in EMS for nearly 15 years. He represents EMS agencies in a wide range of EMS law issues. Matt obtained his EMT certification at Penn State, and then worked full time as an EMT for four years before attending law school. Currently, Matthew works as an active EMS practitioner on a part-time basis. He can be reached at: [email protected]
For over 20 years, PWW has been the nation’s leading EMS industry law firm. PWW attorneys and consultants have decades of hands-on experience providing EMS, managing ambulance services and advising public, private and nonprofit clients across the U.S. PWW helps EMS agencies with reimbursement, compliance, HR, privacy and business issues, and provides training on documentation, liability, leadership, reimbursement and more. Visit the firm’s website at www.pwwemslaw.com.