Flu shot mandates must have exemptions
EEOC: Accommodate ‘sincere ... belief’
Hospitals can get an immediate boost in health care worker vaccination coverage with mandatory influenza immunization policies. But before implementing a mandate, employers must answer an important question: Who will get an exemption?
A mandate without exemptions could be a legal problem, says Joseph Lynett, JD, partner in the Disability Leave and Health Management Practice Group at Jackson Lewis law firm in White Plains, NY.
“To have a policy that does not permit exemptions runs a grave risk of violating Title VII [of the Civil Rights Act of 1964], if the employee needs an accommodation for religious reasons, and particularly the ADA [Americans with Disabilities Act] if the employee needs an exemption for medical reasons,” he says.
The U.S. Equal Employment Opportunity Commission (EEOC) found that “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.”
Employers can ask for verification of an employee’s “sincerely held religious belief,” but cannot require that verification to come from a member of the clergy or congregation, EEOC legal counsel Peggy R. Mastroianni said in a December 5, 2012 letter responding to an employee’s inquiry.1 Supporting information for the religious belief “could be provided by others who are aware of the employee’s religious belief or practice,” the EEOC has said.
The belief does not have to be an established religion. The EEOC notes that “idiosyncratic beliefs can be sincerely held and religious.”
For example, in February, an Ohio district court ruled that a vegan had a possible religious discrimination claim after she was fired for refusing a flu vaccine. Cincinnati Children’s Hospital Medical Center had turned down her request for a religious exemption.
The EEOC allows employers to require other infection control measures, such as wearing a mask, “if not done for retaliatory or discriminatory reasons.”
Lynett also advises unionized hospitals to negotiate with the unions before implementing a mandatory policy.
No egg worries with new vaccines
Employers also need to provide for medical exemptions — but number of exemptions may be decreasing as the changing dynamics of flu vaccines enable even those with egg allergies to receive the vaccine.
“In terms of exemptions based upon medical conditions, the employer shouldn’t avoid its obligation under the ADA to enter into the interactive process. That’s a discussion and exchange of information with the employee regarding the medical necessity to be exempt from a mandatory flu vaccination requirement,” Lynett says.
For the first time, the 2013-2014 flu season will feature two new vaccines that are not grown in eggs — FluBlok, which uses an insect virus and recombinant DNA technology, and Flucelvax, a Novartis vaccine that uses a cell-culture technology. The new technologies allow a swifter response to newly emerging strains because they do not have to be grown in eggs.
“Egg allergy should hardly be an issue any more with influenza vaccine,” says William Schaffner, MD, chairman of the Department of Preventive Medicine at Vanderbilt University in Nashville, TN, and past president of the National Foundation for Infectious Diseases.
Even the traditional inactivated vaccine may be safe for people who have had only a hive reaction (rather than serious anaphylaxis) in response to eggs, according to the Centers for Disease Control and Prevention. In those cases, the individual should be monitored for at least 30 minutes after vaccination by someone who is familiar with the signs and symptoms of egg allergy and is able to respond and rapidly treat anaphylaxis if it occurs, the CDC says.
Anyone who has ever had a severe allergic reaction to a flu vaccine should not receive future vaccines. People with a history of egg allergy should not receive the nasal vaccine (live attenuated influenza vaccine), according to the CDC.
Having had Guillain-Barre Syndrome with onset six weeks after the influenza vaccine is also a “precaution” against vaccination that should be evaluated by a physician, CDC says.
Reference
1. U.S. Equal Employment Opportunity Commission. Letter: Title VII: Vaccination policies and reasonable accommodation. December 5, 2012. Available at www.eeoc.gov/eeoc/foia/letters/2012/tiitle_vii_vaccination_polices_and_reasonable_accommodation.html. Accessed on February 20, 2013.
Hospitals can get an immediate boost in health care worker vaccination coverage with mandatory influenza immunization policies. But before implementing a mandate, employers must answer an important question: Who will get an exemption?You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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