By: Joseph C. O’Keefe, Daniel L. Saperstein, and Harry N. Hudesman
Editor’s Note: Health Reform Watch is very pleased to welcome Joseph C. O’Keefe, Daniel L. Saperstein, and Harry N. Hudesman, attorneys at Proskauer Rose in Newark, New Jersey, to the blog today. This is Part One of their two-part post; we will feature Part Two tomorrow.
When it comes to vaccinations in the workplace, employers in health care face an expanding web of laws and regulations, with sometimes competing interests. While certain states and government agencies have required and/or encouraged influenza vaccinations for healthcare workers (particularly in hospitals), certain anti-discrimination statutes may protect some of the very same employees from vaccination. The debate over mandatory flu vaccinations even has spilled into collective bargaining. This article examines the growing controversy surrounding mandatory vaccinations and provides guidance to health care employers on how to balance an increasing list of mandates and prohibitions.
Laws/Guidance Requiring or Encouraging Vaccinations
For some time, the Centers for Disease Control and Prevention (CDC) have recommended that healthcare workers receive an annual influenza vaccination to protect themselves and patients. See CDC, Influenza Vaccination Information for Health Care Workers. The Department of Health and Human Services also has set forth the goal of increasing the percentage of healthcare personnel who receive the flu vaccination annually to 90% by 2020. See CDC, Health Care Personnel Flu Vaccination, Internet Panel Survey, United States, November 2012.
Several states also have enacted rules requiring hospitals and other entities to implement flu vaccination mandates or to make such vaccinations available for certain health care workers. See CDC, State Immunization Laws for Healthcare Workers and Patients. For instance, a Massachusetts regulation provides that hospitals must ensure that personnel receive vaccination for seasonal influenza, unless the vaccine is “medically contraindicated” or runs against the individual’s religious beliefs. 105 Mass. Code Regs. 130.325 (2014). A worker also may refuse to vaccinate where he or she signs a statement declining vaccination and certifying that he or she has received information about the vaccine’s risks and benefits.
Colorado has a similar law. 6 Colo. Code Regs. § 1011-1:II-10 (2014). If not exempt, licensed hospitals must provide or make available “an annual influenza vaccine for each of its healthcare workers when the influenza vaccine is readily available.” Hospitals must have a written policy that, at a minimum, ensures each healthcare worker has proof of immunization or a medical exemption signed by an appropriately licensed individual (stating that the flu vaccine is “medically contraindicated” as described in the product labeling approved by the Food & Drug Administration). The policy also must ensure that health care workers who do not have proof of immunization wear masks during flu season when in direct contact with patients and in common areas, “in addition to other standard personal protective equipment.” Colorado also imposes requirements on other “licensed healthcare entities.”
It bears mentioning that more ambitious influenza vaccination mandates also have been the subject of legal challenge. In 2009, a New York judge temporarily blocked a requirement that all health care workers in the state receive vaccination for both seasonal flu and the H1N1 viruses. Patterson v. Daines, No. 8830-09, 2009 WL 3444742 (N.Y. Sup. Ct., Albany County Oct. 16, 2009). The Governor ultimately lifted the mandate. 10 N.Y.C.R.R. 66-3 (repealed). And, in Rhode Island, the Service Employees International Union filed suit in federal court in late 2012 claiming that the state’s regulations requiring flu vaccinations for all healthcare workers violated their due process rights, among others. SEIU Healthcare Employees Union v. Fine, No. 1:12-cv-00894 (D.R.I. Dec. 6, 2012). Though the case resulted in a stipulation of dismissal, such challenges may well continue in other states across the country.
Protections Against Discrimination
Although there has not been much litigation challenging the legality of mandatory flu vaccinations, employers should be aware of the potential for liability when imposing such mandates. The Equal Employment Opportunity Commission (EEOC) has construed certain anti-discrimination laws as allowing employees to refuse vaccination on the basis of religion or disability. And, some court decisions have left open the possibility for failure-to-accommodate claims under federal and state anti-discrimination statutes.
Religious Discrimination. The EEOC has stated in guidance that, “under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.” See EEOC, Pandemic Preparedness in the Workplace and the Americans With Disability Act. While the case law has done little to elaborate on what constitutes a reasonable accommodation or what poses an undue hardship, recent decisions have addressed whether certain beliefs that reject vaccination qualify as religions under federal and state anti-discrimination law.
About two years ago, in Chenzira v. Cincinnati Children’s Hospital Medical Center, No. 1:11-CV-00917, 2012 U.S. Dist. LEXIS 182139 (S.D. Oh. Dec. 27, 2012), a customer-service representative at a Cincinnati hospital refused to take the flu shot based on her vegan diet, which eschews the consumption of animal products used in the formulation and manufacture of vaccines. For refusing a vaccination required of hospital employees, the plaintiff’s employment was terminated.
The plaintiff filed suit in Ohio federal court, arguing that her discharge constituted discrimination on the basis of her religion—veganism—in violation of Title VII and Ohio’s state law equivalent. The hospital moved to dismiss the complaint on the grounds that, since veganism is not a religion, the plaintiff could not invoke Title VII as the basis for her refusal to vaccinate. The court denied the motion, holding that, at this early stage in the litigation, the plaintiff had pled facts sufficient to show that veganism could qualify as a religion under the EEOC’s broad interpretation of the term (any “sincerely-held belief”).
The case settled shortly after the court’s decision. Although it is unknown whether the plaintiff would have survived summary judgment or prevailed at trial, the court’s decision remains significant. Indeed, a California appeals court is the only other court to have rendered a reported decision on a similar question in the employment context. In that case — Friedman v. Southern California Permanente Medical Group, 102 Cal. App. 4th 39 (Cal. Ct. App. 2002) — the court reached a different outcome, concluding that veganism was not a “religious creed” under the state’s discrimination statute and, therefore, the plaintiff could not claim religious discrimination on the grounds that she was discharged for refusing to vaccinate (for, in that case, the mumps).
In another reported decision—Edwards v. Elmhurst Hosp. Center, No. 11 CV 4693(RRM)(LB), 2013 WL 839535 (E.D.N.Y. Feb. 15, 2013)—the plaintiff, a Jehovah’s Witness, claimed that the defendant hospital discriminated against him in violation of Title VII for refusing flu vaccination on the basis of his religious beliefs. The court, however, did not address whether the plaintiff qualified for an exemption from vaccination given that he failed to allege any adverse action had been taken against him on the basis of his refusal to vaccinate. Though the case was dismissed, it is but another example of the growing potential for plaintiffs to file suit under various anti-discrimination statutes when seeking to avoid mandatory flu vaccinations on religious grounds.
Disability Discrimination. The EEOC also has stated that employees may receive exemptions from vaccination under the Americans with Disabilities Act based on a disability that prevents him or her from taking the influenza vaccine. See EEOC, Pandemic Preparedness in the Workplace and the Americans With Disability Act. According to the agency, these exemptions would qualify as “reasonable accommodations” absent an “undue hardship.” The EEOC also has noted that, “[g]enerally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”
Public Policy Tort. Disputes over mandatory vaccinations also have spurred tort claims. In Prewitt v. Walgreens Co., No. 12-6967, 2013 WL 6284166 (E.D. Pa. Dec. 2, 2013), the plaintiff opposed administering flu vaccinations to the company’s employees because it “ran contrary” to his “conscience” and “ethical obligations as a pharmacist.” The plaintiff maintained that, as a result of his objections, the company wrongfully discharged him in violation of Pennsylvania public policy. The court did not agree, holding, that the “plaintiff’s pleading that Pennsylvania public policy runs counter to a pharmacist administering flu shots . . . cannot be found in his invocation of the [state] Constitution.”
In Chenzira, supra, the plaintiff also raised a public policy tort claim; however, the court dismissed the claim because “other statutes provide adequate protection and remedies” (i.e., Title VII and Ohio’s state law discrimination statute). Although the plaintiffs did not succeed on public policy grounds in Chenzira or Walgreens, employers should prepare for the possibility that a public policy tort claim may emerge. In fact, the Court in Walgreens suggested in a footnote that plaintiff’s claim for wrongful discharge could be based on sources of law or policy other than the state constitution alone.
A Protected Class? There also have been developments on the legislative front. Not too long ago, a bill was proposed in the Wisconsin state legislature that would have made the “refusal to vaccinate” a protected status under state anti-discrimination law. A.B. 247, 2013-2014 Legislature (Wis. 2013). The bill specifically prohibited employers from taking an adverse action against an applicant, employee or contractor for refusing vaccination against seasonal influenza. In addition, employers could not require flu vaccination if the employee or contractor, after receiving a statement of the risks and benefits of the vaccine, declined in writing.
Under the bill, employers also could not force non-vaccinated employees or contractors to wear masks “in retaliation for refusing the vaccination against influenza” or, in the health care setting in particular, to wear masks “in a manner that exceeds a requirement for an individual to wear a mask upon entry into the room of a patient who has, or is suspected to have, influenza.” Although this legislation failed, the proposal demonstrates that the “right to refuse influenza vaccination” has received the attention of at least some lawmakers.
Finally, given that many health care facilities across the country have unionized employees, employers can expect attempts from unions to bargain over mandatory vaccination policies. Several years ago, in Virginia Hospital v. Washington State Nurses Association, 511 F.3d 908 (9th Cir. 2007), the Ninth Circuit Court of Appeals showed “considerable deference” toward the labor arbitrator’s ruling that the collective bargaining agreement’s (“CBA”) preamble and union recognition clauses militated in favor of the hospital bargaining with nurses over mandatory vaccinations, rejecting the argument that the CBA’s management-rights, patient-priority, and zipper clauses relieved the hospital of its bargaining obligations.
Despite this decision, other cases demonstrate that employers may have more success in unilaterally imposing precautionary measures where employees have not been immunized from the flu. In another case involving Virginia Hospital—Virginia Mason, 358 NLRB No. 64 (2012)—the hospital sought to avoid bargaining over requiring nurses who had not been immunized against the flu and who declined to take antiviral medication to wear a facemask when in contact with patients, fellow employees, and visitors to the hospital. The National Labor Relations Board affirmed the Administrative Law Judge’s (ALJ) decision that the union had, in fact, waived its right to bargain over the employer’s influenza policy by agreeing to the management-rights clause of the parties’ CBA. While the management-rights clause at issue did not specifically mention the wearing of facemasks, it did, according to the ALJ, “clearly and unmistakably” allow the hospital to unilaterally “direct the nurses,” “to determine the materials and equipment to be used,” and “to implement improved operational methods and procedures.” The NLRB embraced these findings and affirmed that the employer’s policy was “simply an extension of the infection control guidelines already in effect.”
O’Keefe is a partner, and Saperstein and Hudesman are associates, in the labor and employment law department at Proskauer Rose in the law firm’s Newark office.