As the worst measles outbreak in the United States in decades has continued to spread, Atlanta employment lawyer Howard Mavity has started hearing a new question from his clients: Can we make our employees get vaccinated?
It’s the kind of query that Mavity, who founded the workplace safety and catastrophe management practice at the law firm Fisher Phillips, has typically heard only during flu season. But amid headlines about quarantines on college campuses in California and a measles case at Google’s headquarters, more businesses are starting to consider what roles or responsibilities they may have to educate employees or offer them the vaccine, some employment lawyers said. “The last time I had any measles questions was during 2015, when the Disneyland [outbreak] got attention,” Mavity said.
The short answer to the complex question about mandating vaccines is that employers may be able to do so — and already do in many health-care settings — but it comes with legal risks and requirements, employment lawyers say.
Under federal law, for example, employers would need to look into accommodating employees who are unvaccinated because they have certain medical conditions, such as a weak immune system. Employers also may be required to make accommodations for workers who object to vaccines on religious grounds, Mavity said. Meanwhile, any test or inquiry used to verify whether employees are vaccinated shouldn’t reveal any other disabilities and would need to be “job-related and consistent with business necessity,” according to the Americans With Disabilities Act.
Vaccinations are commonly required in health-care settings — some states even mandate that hospital workers get certain vaccinations. But Mavity said he is advising against the practice for employers outside of health-care settings or that aren’t in outbreak-affected areas. “So far the [Centers for Disease Control and Prevention] has not said the risk in all settings necessitates confirming vaccinations or resistance,” he said.
Others suggest that the risk of a successful claim for religious discrimination over vaccine requirement may be somewhat limited, especially as more states weigh eliminating religion-based exemptions. “They can bring a claim — the question is whether they would win and on what grounds,” said Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law at Georgetown University.
While he notes that the measles risk in typical workplaces is low and that he is not recommending that employers mandate vaccines, Gostin said he could see more universities and possibly other employers doing it, especially in locations experiencing outbreaks “where there is a relatively young workforce congregating in small spaces or with open plans.”
Beyond the legal question, said Arthur Reingold, a professor of public health at the University of California at Berkeley, there is the question of whether mandating vaccines outside of certain workplaces, such as hospitals or medical schools, is “a reasonable thing to do.” Not only are the levels of immunity among U.S. adults already extremely high, but verifying whether workers have been vaccinated would be a logistical challenge for many employers.
Doing so would involve employees finding childhood immunization records, taking a blood test to show they have antibodies against measles or getting another vaccination as an adult. “From a public health point of view, I think there’s probably going to be relatively little benefit,” Reingold said, to mandating vaccinations in most workplaces.
Mavity said what he is encouraging clients to do is more aggressively educate employees about the benefits of vaccinations — his own firm is doing an education campaign internally through its wellness program — and that some clients have been offering vaccines to employees as part of their wellness programs or health fairs.
At Johnson & Johnson, a spokeswoman said in an email that one of its buildings had an information desk hosted by a vendor where employees could discuss with a doctor whether they might need a measles vaccination booster. Business travelers at the company also receive a targeted email if they book a flight to parts of the world that have had outbreaks. It ensures they are aware of the risk and offers a checklist to help determine whether they need a vaccination.
However, John Anderson, chief medical officer at Concentra, which operates occupational health- and urgent-care clinics for employers, said he hasn’t heard much from clients about the outbreak, though he noted that some questions may not have reached him. “I’m surprised — I thought there would be more attention paid to it,” he said.
If employers do find themselves dealing with a diagnosed case of measles at a work site, it’s critical to immediately talk to the local public health department and a good idea to share information from respected health groups, said Brad Hammock, who co-chairs the workplace safety and health practice group at the employment law firm Littler Mendelson. “Providing credible, sound information to employees from the CDC or from other groups is a good approach,” he said.