In light of pandemic fears over the past several years, health care facilities have been more aggressive about mandating employee flu vaccinations, on the reasonable basis that such vaccinations are required to protect the health and safety of employees, patients and others. On March 5, 2012, the EEOC issued an informal discussion letter on this practice. In its letter, the EEOC reminds employers that practices such as mandatory vaccinations are still subject to the reasonable accommodation requirements under the Americans with Disabilities Act (ADA) and Title VII concerns about religious accommodations.
Under the ADA, an employee can request an exemption to a mandatory vaccination practice based on a disability that prevents him from taking the vaccine. Similarly under Title VII, an employee may have a sincerely held religious belief, practice or observance that prevents vaccination. In either case, the employer MUST explore with the employee whether the exemption is reasonable or if it poses an undue hardship for the employer. The EEOC observes that relevant facts as to whether an undue hardship exists include:
– the assessment of the public risk posed at a particular time
– the availability of effective alternative means of infection control (e.g. masks, gloves, gowns)
– potentially the number of employees who actually request accommodation
The EEOC further reminds employers that the sincerely held religious beliefs do not need to be of an organized religion, and may be moral or ethical beliefs “held with the strength of traditional religious views.” Non-religious philosophical opposition to vaccination (such as a belief that vaccinations have unwanted side effects), however, are not protected and need not be accommodated. Employees can be required to provide information about their beliefs, but the EEOC cautions that employer should not request “unnecessary or excessive corroborating evidence” because such actions could lead to claims of denial of reasonable accommodation or discriminatory harassment.
So, if faced with a request to be exempted from a mandatory vaccination requirement, an employer should not automatically deny it based on safety concerns. There may be other ways of ensuring patient and employee safety that should be considered.