Provided by: Jennifer Kirschenbaum, Esq.
Ocotber 24, 2017
Good morning Jennifer -
I have made an offer for a candidate to work in my small office as a medical assistant, performing both clerical and clinical duties. She has now announced that she does not believe in vaccinations, and thinks they do "more harm than good ". I have some requirements in my office, a solo private practice, that have mirrored those required by larger article 28 institutions, although I am not one. I do, however, on occasion, provide contracted services on site to those types of entities. They have never asked me to prove such things as evidence of TB testing or influenza immunization, for example, but I have always been prepared to do so, as well as provide reassurance to my clients, who refer their employees and patients to me in my own office.
Can I legally require my staff to show evidence of immunity to rubella and rubeola, either by titer or immunization? Can I legally require that they get immunized if they are found to not be protected? Similarly, can I require flu immunization annually or require masks through flu season as required by larger institutions under article 28, if they refuse?
Thanks in advance, Dr. K
Provided by Attorney Jonathan Rogoff, Esq. of our employment department -
In short, the answer in NY is generally yes, you can condition employment on vaccination, 10 CRR-NY 751.6(d)(1)(ii), however, this requirement varies on a state by state basis. The Federal government agrees - Equal Employment Opportunity Commission takes the position an employer can, generally, demand vaccinations. But there are limitations: The anti-discrimination laws prohibit you from requiring vaccinations of those employees objecting on religious grounds or because of a disability (and some state laws even permit employee refusal on "philosophical" grounds). 29 C.F.R. § 1605.1.
However, mandatory vaccines for health care entities are getting a little bit of traction. 10 CRR-NY 405.3. Fifteen states require health care workers to stay updated on vaccinations, and of course an ADA claim would be harder to win for a plaintiff when there is a direct threat to sick or immune-suppressed patients who are being treated by someone who could spread illness because he or she wasn’t vaccinated.
In these cases, you must reasonably accommodate the employee (e.g. allow them to wear a surgical mask), unless that accommodation would cause undue hardship or if it would pose a direct threat to public safety. 10 CRR-NY 2.59. In such a case you can discipline them. Here is where you may have some latitude as a healthcare provider - you could make a compelling argument should an employee challenge a rule requiring vaccination that as a healthcare provider, your office environment demands immunity for patient well-being. 29 C.F.R. § 1605.2.
That being said, you might have a fight on your hands if an employee were looking to make an issue. This would be easier dealt with if you brought this topic into your interview questioning for employees first coming on board. Certainly you cannot NOT hire because of religious belief or religious objection to vaccination, but you can of course pass on an individual for hiring for other better suited candidates for other reasons. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).
Additional rules may apply for union workers.
A related question employers often ask is whether they can ask their employees for vaccination records, or more simply, whether they've been vaccinated.
Employers will have a legal obligation to keep this information confidential, including by maintaining it in a separate file and disclosing it on a need-to-know basis only or as required by law. They have a similar obligation if the employee discloses a disability in response to the vaccination query. 29 C.F.R. § 1605.3. Further, while the law generally does not mandate the disclosure of vaccination records to an employer, a health care provider cannot and will not disclose vaccination records to an employer without first receiving the employee's written authorization. 10 CRR-NY 751.6. Employers cannot force an employee to sign one, but can make vaccination a condition of employment.
Several states require hospital employees to get the vaccine that protects against measles, mumps and rubella, while only three states mandate flu shots for hospital workers. 10 CRR-NY 405.3. Your employer’s right to require vaccinations may also be addressed in an employment contract. If you have an employment contract with your employer, check to see whether it addresses mandatory vaccination. Employers that try to take matters into their own hands could open themselves up to liability under Title VII of the Civil Rights Act and the Americans with Disabilities Act. Title VII of the Civil Rights Act of 1964 Section 701(j). Under Title VII, those who oppose immunizations for “sincerely held” religious beliefs could sue an employer who requires shots.
Looking for more details? Contact Jonathan directly at 516-747-6700 x. 307 or at JRogoff@kirschenbaumesq.com.