Drummond Woodsum Attorneys at Law

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April 22, 2015

Everyone is familiar with the current debate over required childhood vaccines. Usually, the issue arises in the school context and, specifically, whether a parent can choose not to have his/her child vaccinated if he or she has a sincere religious belief conflicting with the requirement, a philosophical reason to object to the vaccine, or if a vaccination is medically inadvisable.[1] The debate over vaccinations, however, is not limited to schools. In the aftermath of the measles outbreak at Disneyland, which resulted in approximately 127 cases of measles in seven states as of March 2015,[2] as well as the number of employees who were absent from work this past winter due to the flu, employers are asking whether they can require their employees to be vaccinated.

Many employers are concerned about the spread of diseases in the workplace and the economic burden of employees missing work because they are sick. As such, some employers believe it is a good idea to require employees to be vaccinated. However, such a requirement may be problematic under the Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA).

Under the ADA, an employer cannot ask for medical information unless the employer has a specific business reason for such information. If an employer requires its employees to be vaccinated, the employer may be indirectly asking for medical information about its employees because the employees will either have to demonstrate proof of their vaccinations or get the vaccinations. Most employers do not have a specific business reason to obtain medical information about their employees. One exception to this general rule is health care employers, such as hospitals and nursing homes, which have an interest in ensuring their employees are vaccinated in order to prevent the spread of diseases among their clients and employees.

Even if an employee's medical information is related to a specific business purpose, the employer may be prohibited from requiring its employees to be vaccinated under the MHRA. The MHRA prohibits employment discrimination on the basis of, among other things, religion and disability.[3] Accordingly, if an employer requires vaccinations, the employer must make an exception for an employee who has a sincerely held religious belief against receiving a vaccination. If the employer does not make such an exception, then the employee may have a viable claim for discrimination on the basis of his or her religion. Similarly, an employer must make an exception for an employee who has a medical condition that makes it inadvisable for the employee to receive a vaccination. Otherwise, the employee may have a viable claim for discrimination on the basis of a disability.

Due to the legal limitations on an employer's ability to require vaccinations in the workplace, instead of requiring vaccinations, employers should consider implementing policies that strongly encourages employees to get vaccinated (e.g. get a flu shot). Employers or education campaigns can institute a reduced rate for health insurance benefits as well as offering vaccinations on site and/or at no cost to employees.

Lastly, there are currently a number of proposed bills in the Maine Legislature regarding required vaccinations in schools. While there are not currently any proposed bills regarding required vaccinations in the workplace, given the increasing concern about the spread of diseases, such bills may be proposed in the near future.

[1] 20-A M.R.S.A. § 6359(3).

[2] http://www.cdc.gov/measles/multi-state-outbreak.html.

[3] 5 M.R.S.A. § 4571.

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