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Measles increase prompts employers to examine vaccine policies
Daily Oklahoman - 7/12/2019
Jul. 12--Tanya S. Bryant is a Crowe & Dunlevy attorney and member of the Labor and Employment Practice Group. With the recent resurgence of measles cases in the United States, what are some important issues for employers when considering whether to mandate vaccinations or offer vaccinations to employees?
Employers should consider the nature of their businesses and whether their policies are appropriate and legally compliant with the applicable laws. For instance, employees in health care settings work with patients who have compromised immune systems and therefore have a higher risk of health complications from measles.
On the other hand, the risk of measles in a non-health care workplace setting is low. Therefore, while health care employers may decide to implement a policy requiring certain vaccines, non-health care employers do not face the same risks, and such a mandate would be subject to higher scrutiny.
Federal laws such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) address the accommodations that employers may have to provide to employees with disabilities or those who object to vaccines based upon a sincere religious belief. Typically, the vaccines at issue are for measles, mumps and rubella (MMR) and the influenza vaccine.
What types of accommodations may be required under the ADA and Title VII?
Under the ADA, employers may need to accommodate unvaccinated employees who have certain medical conditions such as a past severe reaction to a vaccine or a disability that puts them at risk due to a weak immune system. This means exempting an employee from receiving the vaccine whether the employer's policy mandates vaccinations or simply offers them. Likewise, under Title VII, if an employee objects to receiving a vaccine based on religious grounds, the employer may be required to grant the employee an exemption.
What inquiries may an employer make to an employee and third parties after the employee makes a request for an exemption to receiving a vaccine?
Under the ADA, employers are permitted to seek medical information that supports the employee's request for accommodation. However, employers must be careful not to elicit information that may reveal other disabilities and genetic information.
The request should be limited to the medical impairment at issue. The accommodation will depnd upon the employee's duties. It may be appropriate for one employee to don a facemask at times, while another employee's specific situation may result in reassignment to an available position in a different department.
When considering an employee's request for an exemption based upon a religious belief, employers may ask for an explanation from the employee clarifying the request in certain circumstances. For example, an employee who refuses a vaccination stating simply "religious reasons," may be asked for additional information to support the employee's sincerely held belief.
In some situations, employers may choose to seek a statement from a religious leader or other person who is aware of the employee's beliefs. If the employer has legitimate doubts as to the employee's sincerity of a religious belief or practice, the employer may request more information supporting the request. Employers should be cautious on the extent of the information asked as such inquiries may later be challenged.
Although the employer is required to analyze each individual situation separately, an even-handed application of the employer's policies and procedures will benefit the employer and its workforce.
What steps can employers take to better protect those who enter their workplaces against the measles and the flu, whether employees or visitors?
Employers should educate the workforce about the benefits of vaccinations. This may be carried out through training, policies and vaccination offerings as part of a wellness program. Employers should also stay abreast of the state laws in addition to federal laws as the number of measles cases continues to grow and the flu remains a serious concern.
Paula Burkes, Business writer
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