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The Recent Spread of Infection

The United States has reported over 900 cases of measles in 2019, the most since the measles were declared eliminated over two decades ago. In the wake of the measles outbreak, New York City has declared a public health emergency after more than 280 people were sickened, largely affecting an Orthodox Jewish Community in Brooklyn. The number of confirmed cases has since climbed to well over 700. The emergency declaration requires anyone who has not yet been immunized to get the measles, mumps, and rubella (MMR) vaccine, unless the individual qualifies for a medical exemption. City officials, such as Health Commissioner Dr. Oxiris Barbot, blame “anti-vaxxers” for spreading misinformation about vaccine safety and “fake science.”

This proliferation of misinformation, coupled with easy access to vaccine exemptions in several states, has made avoiding vaccinations in settings where they are normally required much easier. Seventeen states allow philosophical exemptions to mandatory vaccines for public school students; New Jersey requires no outside verification when parents oppose vaccinating their children.1 In response to the outbreak, New York lawmakers are trying to pass a bill that would eliminate the religious exemption from vaccines and maintain medical exemption as the only way to avoid receiving a vaccine.

State Vaccination Laws

Healthcare facilities across the country are increasingly requiring healthcare workers to be vaccinated for certain vaccine-preventable diseases to reduce the spread of infectious diseases. Many facilities are establishing these requirements under mandates set forth by state statutes or regulations. Depending on the state, these policies may require the provider to assess employees’ immunization histories, to offer vaccinations to employees, and to ensure employees are indeed vaccinated. The policies may also provide for certain exemptions, such as religious, medical, or philosophical reasons for refusing vaccines. The table below provides a summary of the relevant MMR vaccine laws for New York, New Jersey, and Pennsylvania. Among these three states, New York vaccination law is more rigorous, requiring healthcare facilities to ensure that employees have received MMR vaccines. On the other hand, Pennsylvania law maintains one statute that applies only to birth centers and requires only assessment of the employees’ immunization history.

New York

New Jersey

Pennsylvania

10 NYCRR §405.3

  • Applies to all hospitals and all healthcare workers
  • Requires assessment and ensuring immunization
  • Allows medical exemptions

10 NYCRR §415.26

  • Applies to all long-term care facilities and all healthcare workers
  • Requires assessment and ensuring immunization
  • Allows medical exemptions

10 NYCRR §751.6; 14 NYCRR §825.12; 10 NYCRR §404.12; 14 NYCRR §599-1.12

  • Applies to all ambulatory care facilities and all healthcare workers
  • Requires assessment and ensuring immunization
  • Allows medical exemptions

N.J.A.C. §8:43G-20.2

  • Applies to all hospitals and all healthcare workers

  • Requires assessment and offering immunization

  • No exemptions specified

N.J.A.C. §8:43A-3.7

  • Applies to all ambulatory care facilities and all healthcare workers

  • Requires assessment only

  • No exemptions specified

28 Pa. Code §501.41; §501.7

  • Applies to birth centers only and all healthcare workers

  • Requires assessment only

  • No exemptions specified

Impact on Healthcare Facilities

Nationally, there has been a significant decrease in healthcare-associated infections (HAI) – infections communicated through the air and through contact in healthcare facilities. Yet, on any given day, about 1 in 31 hospital patients has at least one HAI. The Centers for Disease Control and Prevention (CDC) strongly encourage healthcare facilities to provide vaccines to employees through multifaceted programs that serve to educate and combat misconceptions surrounding vaccines. The CDC predicts that without these holistic programs, vaccination rates will decrease and healthcare environments will become more vulnerable to HAIs. 

Healthcare providers often offer incentives for individuals to receive the annual flu vaccine, and some even require employees to be vaccinated for continued employment. However, in recent years, mandatory flu vaccines have become a source of employment litigation, with the Equal Employment Opportunity Commission (EEOC) often joining the fight against mandatory vaccines.

Determining Liability

Like schools, healthcare providers can likely require their employees to be vaccinated because of their work with patients, children, and people with weak immune systems. In fact, most employers may institute mandatory vaccine policies and fire non-union workers for not complying with these policies because most employment is at will. However, mandatory vaccinations are usually not worth the legal ramifications and costs. If an employer institutes a mandatory vaccination policy, it could be subjecting itself to potential liability under Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA), and various state laws. Title VII may require an employer to provide a reasonable accommodation to an employee with religious beliefs that prevent him or her from taking vaccines. Likewise, individuals with certain disabilities may not be able to have certain vaccinations due to the risk that they will exacerbate their medical conditions. Further, unionized employers may be prohibited from imposing mandatory vaccinations without first bargaining with the union.

However, when it comes to assessing the immunization of employees, employers are within their rights in asking employees whether they have received recommended vaccines. The ADA has been interpreted by the EEOC to prohibit the eliciting of information about an employee’s disabilities. Since a lack of antibodies (as would be received through a vaccine) is not likely to be considered a disability, inquiring as to whether an employee has been vaccinated would not reveal information protected under the ADA.

Furthermore, under the Occupational Safety and Health Act (OSHA) of 1970, an employer must “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”2 It is conceivable that OSHA could be interpreted to require a fully vaccinated workplace.

How to Increase Employee Immunization

Mandating vaccines seems reasonable – especially in certain workplaces. However, logistical challenges may arise for both employers and employees. Mandated vaccines would involve locating childhood immunization records, and taking and disclosing the results of a blood test to determine immunity. Levels of immunity among adults in the United States are already extremely high, further minimizing the incentive to administer mandatory vaccination policies.

In an effort to increase employee immunization, employers may choose to educate and incentivize vaccinations. Employers opting out of mandatory vaccines should educate staff about how to prevent disease and the benefits of vaccination, sponsor vaccination sites at work, and institute policies that encourage employees to remain at home if they aren’t feeling well. Providing employees with credible information from the CDC is a necessary and meaningful step toward ensuring a safe work environment.

Nancy Fisher, Summer Associate, contributed to this advisory.

  1. Lindy Washburn, Inoculation Fears Persist Amid Measles Outbreaks: “Vaccine Hesitancy” Among Top Global Health Threats, WHO Says, The Journal News (Apr. 29, 2019).
  2. Occupational Safety and Health Act (OSHA) of 1970, 29 U.S.C. §654 (2000).