Can You Require Employees to Be Vaccinated?

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By Mark Wilson, Esq. on February 10, 2015 11:52 AM

Here's a timely legal question for employers: Can you require employees to be vaccinated?

The recent outbreak of measles at Disneyland, coupled with the fact that many parents are choosing not to vaccinate their children, is leading to new workplace policies designed to forestall damage from highly communicable diseases.

This led NPR to wonder whether an employer can legally require employees to be vaccinated as a condition of employment. Can employers really force employees to be vaccinated?

Sometimes, Maybe

While the federal government has no such requirement, many states have laws requiring health care workers to be vaccinated. This only makes sense: Health care workers, who interact with sick patients on a daily basis, are excellent potential vectors for disease. Immunizing them ensures that, even they pick up a disease from someone else, their immune system will quickly destroy it so it can't be transmitted.

In many states, people who work with children can be subjected to medical examinations prior to starting employment. In California, for example, teachers and daycare workers must be screened for tuberculosis before they can start work; while the state also recommends they receive flu vaccines, they haven't been required to do so.

For Private Sector Employees, It's Murky

The real question, though, is whether private, non-health care employers can require employees to be vaccinated. Generally speaking, private employers can terminate at-will, non-union employees at any time for any reason that isn't protected by law.

An employer could conceivably fire an employee who refuses a particular vaccine, but that could potentially run up against the Americans With Disabilities Act. The ADA prohibits employers from requiring medical examinations, but permits voluntary examinations and disclosures if the examination or disclosure is job-related.

The ADA does, however, specifically call out food service workers for different treatment. Food service workers who have infectious diseases that can't be eliminated by a "reasonable accommodation" can be reassigned or terminated. Thus, a food service employee who isn't immunized against a highly communicable disease like measles could be reassigned or terminated, depending on the nature of the job, as there's arguably no reasonable accommodation for not being immunized against measles. (For example, if there are no non-food-handling jobs at the particular location, then reassignment wouldn't be an option.)

As NPR points out, though, requiring immunization of adults may not be terribly important in the grand scheme of things, as "[a]bout 96 percent of adults in the United States are already immune to measles." The real concern remains with children, some of whom are not being immunized.

Still, if you're considering an employee vaccination requirement at your business, it may be best to consult an experienced employment lawyer first.

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