Disney made headlines this week after asking unvaccinated employees to get the measles vaccination before returning to work. This comes after news of a recent measles outbreak that can be traced back to the happiest place on earth, when an infected visitor arrived at the park back in December of 2014. Since then, the disease has quickly spread, infecting over 100 people in 14 states. In an effort to contain the spread of the disease, Disney has strongly encouraged its 27,000 employees to show proof of vaccination or get vaccinated at its cost.
While the measles might not be an immediate threat to most other workplaces, the issue of employer-mandated vaccinations comes up in many other contexts. Most commonly, the issue comes up when the flu season rolls around. According to the Centers for Disease Control and Prevention, the flu causes $6.2 billion in lost productivity each year. To prevent such loss, employers may be tempted to require all employees to get the flu vaccine. The question is: Can employers legally do this?
In every state except Montana, the default rule is that employment is at will. This means that employers may fire employees at any time and for any reason, as long as the reason is not illegal. In general, employers are free to place conditions on employment, including requiring employees to get vaccinated.
The problem, however, arises when the mandatory vaccination rule is applied to certain individuals. In particular, mandatory vaccination policies may violate federal antidiscrimination laws. Title VII of the Civil Rights Act makes it illegal for an employer to discriminate against an employee on the basis of religion, while the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of an employee’s disability. Employees who refuse to get vaccinated due to religious beliefs, or who are unable to get vaccinated due to disabling health conditions, are protected under these laws. Employers cannot fire these employees for refusing to get vaccinated, nor can they ask questions that delve too deeply into an employee’s religious beliefs or medical condition.
Because of the potential for illegal discrimination, many employers – like Disney – choose to encourage, but not require, vaccinations. Employers can create incentives for their employees to get vaccinated, such as footing the bill or having on-site vaccinations available at the workplace. Employers can also prevent the spread of disease by giving employees sick leave or allowing sick employees to work from home while they’re contagious.