Y. Tony Yang, Elizabeth Pendo, and Dorit Rubenstein Reiss, The Americans with Disabilities Act and Healthcare Employer-Mandated Vaccinations, 38 Vaccine 3184 (2020), https://digitalcommons.law.uw.edu/faculty-articles/960
The Americans with Disabilities Act and Healthcare Employer-Mandated Vaccinations
Battles around workplace vaccination policies often focus on the annual influenza vaccine, but many healthcare employers impose requirements for additional vaccines, because of the increased likelihood that employees in this sector will interact with populations at increased risk of acquiring or experiencing harmful sequelae of vaccine-preventable diseases. The federal Centers for Disease Control and Prevention and many states recommend healthcare employees receive numerous vaccines, including measles, mumps, and rubella (“MMR”); tetanus, diphtheria, and pertussis (“Tdap”). However, recent outbreaks of once-eliminated diseases that are now resurgent and the rising antivaccination movement raise questions about how far employers can go to mandate vaccinations.
While healthcare institutions are increasingly mandating that employees receive vaccinations, employee objections to vaccines, including litigation, have increased in recent years. Employer policies must comply with the Americans with Disabilities Act (“ADA”), which prohibits discrimination on the basis of disability. Disability is defined as “a physical or mental impairment that substantially limits one or more major life activities,” a history of disability or being regarded as having a disability. In this context, the impairment would be an underlying condition that results in a heightened susceptibility to medical risks from a vaccine. Although the ADA permits mandatory vaccine policies under certain circumstances, employers must consider “reasonable accommodations”, which are changes to the job or work environment that permit an employee with a disability to perform the essential functions of the job. Employers do not have to provide accommodations if it would result in an “undue hardship” (significant difficulty or expense with respect to the provision of an accommodation) or a “direct threat” (a significant risk of substantial harm to the health or safety of the employee or others, which cannot be eliminated or reduced by a reasonable accommodation). In this circumstance, a “direct threat” is a significant risk of spreading a vaccine-preventable illness to others. Two recent cases suggest how employers seeking to protect their workforce and the patients they serve by requiring vaccines can work within the framework of the ADA to implement these policies.