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Employer-Mandated Vaccination Policies:
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Teri Dobbins Baxter
University of Tennessee College of Law
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885
EMPLOYER-MANDATED VACCINATION POLICIES:
DIFFERENT EMPLOYERS, NEW VACCINES, AND HIDDEN RISKS
Teri Dobbins Baxter
*
Abstract
Although debates about access to healthcare and healthcare
financing have been in the headlines for years, attention has only
sporadically focused on new and resurgent health challenges in the form
of outbreaks of contagious diseases. One obvious weapon in the fight
against outbreaks is vaccination. Many vaccines have been proven safe
and highly effective, but vaccine opponents have been vocal and
influential; even some who work in healthcare facilities distrust vaccines.
The tension between employees who distrust vaccines and employers who
want to encourage or require vaccination has led many healthcare policy
and legal scholars to explore the legal and ethical implications of
compulsory vaccine policies. Most of the legal scholarship has focused on
mandatory influenza (“flu”) vaccinations for healthcare workers, and
healthcare employers’ potential liability if they impose vaccine mandates.
However, influenza is not the only disease that threatens communities.
Moreover, healthcare facilities are not the only employers affected by
outbreaks. This Article considers the legal issues healthcare and
nonhealthcare employers should consider when deciding whether to
require employees to be vaccinated against the flu and other diseases such
as measles and pertussis—for which safe and effective vaccines already
exist, and the Ebola and Zika viruses—for which vaccines are currently
being developed.
Most arguments in support of or in opposition to flu vaccination
policies do not address whether healthcare or other employers may face
liability if they do not require employees to be vaccinated. The question is
critically important because many lawyers and government agencies
advise employers to encourage but not mandate employee vaccination,
and the only risk identified is the risk of being sued for imposing a mandate
in violation of antidiscrimination statutes. The unstated premise is that
there is no liability if the employer chooses not to require vaccination. This
Article considers the legal issues healthcare and nonhealthcare employers
*
© 2017 Teri Dobbins Baxter. Associate Dean for Faculty Development and Professor
of Law, University of Tennessee College of Law. The author thanks Associate Dean and
Professor Alex Long for his helpful comments, Christopher John and Alex Thomason for
their valuable research assistance, and the University of Tennessee College of Law for its
generous research support.
886 UTAH LAW REVIEW [NO. 5
should consider when deciding whether to require employees to be
vaccinated against the flu and other diseases such as measles and
pertussis—for which safe and effective vaccines already exist—and the
Ebola and Zika viruses—for which vaccines are currently being
developed.
I. INTRODUCTION
The future of healthcare in America is uncertain. Many questions about who
will have access to healthcare and how it will be paid for are likely to remain
unsettled for months or years to come. But it is clear that Americans are facing new
and resurgent health challenges in the form of outbreaks of vaccine-preventable
illnesses. In addition to determining who will pay to treat infected patients, various
segments of society—including employers whose business interests may be
adversely affected by disease outbreaks—must consider how to prevent and control
the spread of these diseases.
One obvious weapon in the fight against outbreaks is vaccination. Despite the
increased scrutiny and distrust of vaccines over the past two decades, the
overwhelming weight of authority confirms that vaccines save lives, and most are
safe for the vast majority of the population.
1
The strength of the medical evidence
helps explain why certain vaccines are mandatory for schoolchildren in every state.
2
It also supports efforts by states and employers to mandate influenza (“flu”)
vaccinations for healthcare personnel. But vaccine opponents have been vocal and
influential, and even some who work in healthcare facilities oppose vaccine
mandates. The tension between employees who distrust vaccines and employers
who want to encourage or require vaccination has led many healthcare policy and
legal scholars to explore the legal and ethical implications of compulsory vaccine
policies.
3
While many scholars have made important contributions to this discussion,
most of the legal scholarship focuses solely on the flu vaccine for a limited class of
employees: healthcare workers. It is certainly understandable that scholars would
1
Ctrs. for Disease Control & Prevention, Vaccines and Immunizations: Six Things YOU
Need to Know about Vaccines, http://www.cdc.gov/vaccines/vac-gen/vaxwithme.html
[https://perma.cc/V5FR-J7AS] (last updated Aug. 31, 2016) (explaining the measures taken
to ensure the safety of approved vaccines and noting the rarity of severe side effects).
2
While every state requires vaccinations for children attending school, states are not
uniform with respect to which exemptions, if any, are available or the consequences of failure
to comply with the vaccination requirements. See discussion infra Part III.A.
3
See, e.g., Rene F. Najera & Dorit R. Reiss, First Do No Harm: Protecting Patients
Through Immunizing Health Care Workers, 26 HEALTH MATRIX 363, 368 (2016) (exploring
“the legal issues surrounding the influenza vaccine requirement for health care workers”);
Alexandra M. Stewart et al., Mandatory Vaccination of Health-Care Personnel: Good
Policy, Law, and Outcomes, 53 JURIMETRICS J. 341, 341 (2013) (“In this article, we argue
that mandatory vaccination in the health-care context is supported by ethics, science, and
law.”).
2017] EMPLOYER-MANDATED VACCINATION POLICIES 887
focus on the flu vaccine and healthcare personnel to analyze legal issues raised by
mandatory vaccination policies. Influenza is a serious, highly contagious disease that
affects thousands of people each year and exacts a heavy price in terms of economic
losses for employers, strain on the healthcare system, and thousands of deaths.
Moreover, because the risks and benefits have been closely studied over a long
period of time, it is relatively easy for scholars—and courts—to perform a risk-
benefit analysis and apply the results to constitutional, antidiscrimination, and
disability law arguments.
Yet, the conclusions reached for compulsory flu vaccine policies for healthcare
workers cannot be applied to questions about other employers or other vaccines
without critical thought. New diseases threaten our communities constantly, and as
new vaccines are developed—such as the Zika and Ebola vaccines currently being
developed and tested—employers must reconsider whether to implement mandatory
vaccination policies. This Article considers factors those employers should consider
when making their decisions.
This Article also explores uncharted territory by considering whether some
employers might face liability for failing to require their employees to be vaccinated.
This question is critically important because employers are often advised by their
lawyers and government agencies to encourage—but not mandate—employee
vaccination, even though policies that rely on voluntary compliance are often
ineffective. Moreover, the only risk identified is the risk of being sued for imposing
a mandate in violation of antidiscrimination statutes. The unstated premise is that
there is no liability if the employer chooses not to require vaccination. This Article
considers the accuracy of that premise and concludes that employers whose
employees are likely to transmit diseases to other employees, vulnerable clients, or
patients may face liability if they fail to require their employees to be vaccinated.
For example, while liability is not likely, it is possible that an employee could
successfully argue that an employer’s failure to mandate vaccination was negligent
or violated a statutory duty, such as the general duty clause of the Occupational
Safety and Health Act (“OSHA”).
Part II of this Article briefly outlines the laws that an employer must consider
before adopting a mandatory vaccination policy. Part III addresses current state laws
mandating or encouraging vaccination and describes the categories of people,
places, and vaccines covered—and not covered—by those laws. Part IV discusses
the history of vaccine mandates in healthcare settings, some of the legal challenges
to such mandates, and the reasons why relatively few healthcare facilities have
adopted mandates. Part V identifies other employment settings that may benefit from
mandatory vaccine policies and analyzes the risks and benefits of such policies. Part
VI identifies vaccine-preventable diseases other than influenza that could threaten
an employer’s staff and business, and questions whether healthcare or other
employers might benefit if they require employees to get vaccinated against those
diseases. Finally, the wisdom and legality of such mandates is considered from the
perspective of the employer in light of larger public policy concerns.
Ultimately, this Article concludes in Part VII that while society might reap
some benefit from employer-mandated vaccination policies, and while a mandate
888 UTAH LAW REVIEW [NO. 5
might be justified in rare circumstances—such as an outbreak that will have a
significant impact on the employer’s business or the well-being of employees or
customers—the risk of liability and the economic and noneconomic costs to the
employer often outweigh the benefits.
II. LAWS RELEVANT TO EMPLOYER-MANDATED VACCINATION POLICIES
The laws that apply to vaccine mandates vary depending upon whether the
employer is a private entity or a branch or agency of the government. The United
States Constitution, and some federal and state laws, restrict government action in
ways that do not apply to private employers. However, several federal and state laws
may impact whether and how a private employer may impose a vaccination
requirement. This section identifies relevant laws and how they apply to public and
private employers.
A. Fourteenth Amendment Liberty Interests
The Fourteenth Amendment has been interpreted to protect against state
deprivation of certain liberty interests.
4
Because only state action is restricted, the
Fourteenth Amendment does not affect private employers who choose to require
employees to get vaccinated.
5
However, it is relevant to states and municipalities
that impose vaccine mandates on entire populations or a subset thereof.
6
State police powers undoubtedly include the right to pass laws to protect the
health and safety of state inhabitants.
7
The seminal case upholding state mandatory
vaccination laws is Jacobson v. Massachusetts,
8
which the Supreme Court decided
in 1905.
9
The case was brought by a resident of Cambridge, Massachusetts who was
prosecuted and found guilty of violating a regulation that required all inhabitants of
the city to be vaccinated against smallpox.
10
Mr. Jacobson argued that the vaccine
4
Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999) (“[T]he Fourteenth
Amendment protects liberty and property interests only against invasion by the state . . . .”).
5
See id.
6
Id.
7
Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (“According to settled principles,
the police power of a state must be held to embrace, at least, such reasonable regulations
established directly by legislative enactment as will protect the public health and the public
safety.”).
8
197 U.S. 11 (1905).
9
Id. at 12. More recently, the United States Court of Appeals for the Second Circuit
and the Supreme Court of Appeals of West Virginia have decided cases challenging the
mandatory vaccination laws in New York and West Virginia. Phillips v. City of New York,
775 F.3d 538, 540 (2d Cir. 2015); D.J. v. Mercer Cty. Bd. of Educ., No. 13-0237, 2013 WL
6152363, at *1 (W. Va. Nov. 22, 2013).
10
Jacobson, 197 U.S. at 12–13. The regulation was passed by the board of health,
pursuant to a state law giving it authority to require vaccinations if, in the opinion of the
board, it was necessary for the public health or safety. Id.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 889
mandate violated his liberty interests under the Fourteenth Amendment to the United
States Constitution.
11
He claimed that “a compulsory vaccination law is
unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right
of every freeman to care for his own body and health in such way as to him seems
best; and . . . is nothing short of an assault upon his person.”
12
The Supreme Court disagreed and held that the regulation did not violate the
Constitution.
13
In so holding, the court noted that the liberty interests protected by
the Fourteenth Amendment are not absolute.
14
There is, of course, a sphere within which the individual may assert the
supremacy of his own will, and rightfully dispute the authority of any
human government,—especially of any free government existing under a
written constitution, to interfere with the exercise of that will. But it is
equally true that in every well-ordered society charged with the duty of
conserving the safety of its members the rights of the individual in respect
of his liberty may at times, under the pressure of great dangers, be
subjected to such restraint, to be enforced by reasonable regulations, as the
safety of the general public may demand.
15
Thus, the mere fact that a state law infringes on an individual’s liberty in some
manner does not lead to the inevitable conclusion that the law is unconstitutional.
In addressing the smallpox regulation, the Court noted that the state legislature
only mandated vaccination when it was necessary for public health or safety.
16
It
was neither arbitrary nor unreasonable for the legislature to entrust that authority to
the board of health, which it presumed was composed of members of the community
qualified to make that determination.
17
Moreover, the regulation was implemented
at a time when it was undisputed that smallpox “was prevalent to some extent in the
11
Id. at 13. Specifically, he argued that the regulation:
. . . was in derogation of the rights secured to the defendant by the 14th
Amendment of the Constitution of the United States, and especially of the clauses
of that amendment providing that no state shall make or enforce any law abridging
the privileges or immunities of citizens of the United States, nor deprive any
person of life, liberty, or property without due process of law, nor deny to any
person within its jurisdiction the equal protection of the laws[.]
Id.
12
Id. at 26.
13
Id. at 38–39.
14
Id. at 26.
15
Id. at 29.
16
Id. at 25–28.
17
Id.
890 UTAH LAW REVIEW [NO. 5
city of Cambridge, and the disease was increasing.”
18
Under those circumstances,
the Court was unwilling to find that the regulation was arbitrary.
19
Nevertheless, the
Court cautioned that compulsory vaccination laws could be unconstitutional if they
were not justified by the “necessities of the case.”
20
If the acknowledged authority
of a state or municipality to pass laws to protect health and safety was exercised in
“an arbitrary, unreasonable manner” or went “so far beyond what was reasonably
required for the safety of the public” the courts would be obligated to declare them
in violation of the Constitution.
21
Finally, the Court addressed Mr. Jacobson’s attacks on the efficacy and safety
of vaccines.
22
While acknowledging the existence of laymen and medical
professionals who did not believe that vaccines prevented disease and that they could
cause disease, the court took judicial notice of contrary views held by “high medical
authority.”
23
The Court held that the legislature was free to choose between the
competing views and was not required to submit its decision to review by a judge or
jury.
24
If there is any such power in the judiciary to review legislative action in
respect of a matter affecting the general welfare, it can only be when that
which the legislature has done comes within the rule that, if a statute
purporting to have been enacted to protect the public health, the public
morals, or the public safety, has no real or substantial relation to those
objects, or is, beyond all question, a plain, palpable invasion of rights
secured by the fundamental law, it is the duty of the courts to so adjudge,
and thereby give effect to the Constitution.
25
Not only did the Court refuse to usurp the legislature’s role in deciding disputed
issues related to public health and safety, it also refused to recognize an individual
right to refuse vaccination based on his own belief that the smallpox vaccination
would not be beneficial to him and might cause him serious injury or death.
26
18
Id. at 27.
19
Id.
20
Id. at 28.
21
Id. (discussing Hannibal & St. J.R. Co. v. Husen, in which the Court struck down a
Missouri law prohibiting certain cattle from coming into the state. The Court held that the
law was not a valid exercise of the state’s police power since it did not protect against disease
and invaded Congress’ exclusive authority to regulate interstate commerce. 95 U.S. 465,
473–74 (1877)).
22
Jacobson, 197 U.S. at 30.
23
Id.
24
Id.
25
Id. at 31.
26
Id. at 36–39 (refusing to allow individuals “residing or remaining in any city or town
where smallpox is prevalent, and enjoying the general protection afforded by an organized
local government, may thus defy the will of its constituted authorities, acting in good faith
for all, under the legislative sanction of the state”).
2017] EMPLOYER-MANDATED VACCINATION POLICIES 891
While courts have relied upon Jacobson for more than one hundred years to
uphold compulsory vaccination laws, one portion of the opinion suggests a limit to
the state’s authority. The Massachusetts law sanctioning compulsory vaccination
exempted children who were deemed “unfit subjects for vaccination”
27
by a
physician, but no such exemption was provided for adults.
28
The court stressed that
it was “not to be understood as holding” that the statute was intended to apply to an
adult who could establish with reasonable certainty that he or she is not a fit subject
for vaccination, or that vaccination would cause serious injury or “probably cause
his death.”
29
The Court implied that under such circumstances, application of the
statute might be so arbitrary or oppressive “as to justify the interference of the courts
to prevent wrong and oppression.”
30
B. The Free Exercise Clause of the First Amendment to the United States
Constitution
By its terms, the Free Exercise Clause of the First Amendment prohibits federal
laws “respecting an establishment of religion, or prohibiting the free exercise
thereof.”
31
The Supreme Court has recognized that the Fourteenth Amendment
incorporates First Amendment rights and protects against state action that burdens
the free exercise of religion.
32
Many assume that the Free Exercise Clause poses a
serious roadblock to vaccine mandates if an employee objects on religious grounds.
However, for most employers, the Free Exercise Clause poses a modest obstacle or
none at all.
First, the First Amendment only restricts government action.
33
Thus, it does not
restrict the rights of private employers at all.
34
Moreover, the scope of the clause is
narrower than one might expect in that it protects against government regulation of
religious beliefs,
35
but it does not place all religious acts beyond the reach of
It is worth noting that Jacobson’s concerns about the smallpox vaccine were not
unfounded. There were serious side effects and dangers associated with smallpox
vaccination. See discussion infra Part VI.A.3.
27
Jacobson, 197 U.S. at 30.
28
Id.
29
Id. at 37–39.
30
Id. at 38.
31
U.S. CONST. amend. I.
32
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (“The fundamental concept of
liberty embodied in that Amendment embraces the liberties guaranteed by the First
Amendment.”).
33
Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“[T]he constitutional guarantee of free
speech is a guarantee only against abridgment by government, federal or state. Thus, while
statutory or common law may provide redress against a private corporation or person who
seeks to abridge the free expression of others, no such protection or redress is provided by
the Constitution itself.”) (internal citation omitted).
34
Id.
35
Emp. Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 877 (1990).
892 UTAH LAW REVIEW [NO. 5
otherwise valid laws.
36
In Employment Division, Department of Human Resources
of Oregon v. Smith,
37
the Supreme Court held that “the right of free exercise does
not relieve an individual of the obligation to comply with a ‘valid and neutral law of
general applicability on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes).’”
38
Therefore, so long as a vaccine mandate is a neutral law that applies equally to
all employees and does not target anyone because of their religious beliefs, the
policy will not violate the Free Exercise Clause.
39
In other words, even if an
employee opposes vaccination because of a sincerely held religious belief, the Free
Exercise Clause does not require a government employer to exempt that employee
from a vaccine mandate that applies to all similarly-situated employees, regardless
of their religious beliefs.
C. Religious Freedom Restoration Acts
Although government employers who impose vaccine mandates may not have
to worry about violating employees’ constitutional rights, federal and some state
laws provide relief for those whose objections are based on their religious beliefs.
Before the issue was settled by the Court’s holding in Smith, lower courts interpreted
an earlier Supreme Court case to require strict scrutiny in cases implicating the Free
Exercise Clause.
40
Many on both ends of the political spectrum were unhappy with
the Court’s holding in Smith that strict scrutiny did not apply and, in response,
Congress enacted the Religious Freedom Restoration Act (“RFRA”) which revived
the strict scrutiny standard, at least as applied to legislation and policies enacted and
enforced by the federal government.
41
Similar state statutes also require strict scrutiny of state regulations that affect
a person’s free exercise of religion.
42
Under a strict scrutiny standard, if a
36
Id. at 878–79.
37
494 U.S. 872 (1990).
38
Id. at 879. In addition, the Court held that such laws are not subject to strict scrutiny
and will be upheld if they are otherwise valid and within the state’s regulatory authority. Id.
at 888–90.
39
Id. at 879.
40
See Sherbert v. Verner, 374 U.S. 398, 406–07 (1963) (applying strict scrutiny and
holding that no “compelling state interest” justified “the substantial infringement of
appellant’s First Amendment right”).
41
42 U.S.C. § 2000bb-1 (1993) (“Government shall not substantially burden a person’s
exercise of religion even if the burden results from a rule of general applicability . . . .”); Holt
v. Hobbs, 135 S. Ct. 853, 859–60 (2015) (“Following our decision in Smith, Congress
enacted RFRA in order to provide greater protection for religious exercise than is available
under the First Amendment.”). But see City of Boerne v. Flores, 521 U.S. 507, 536 (1997)
(striking down RFRA to the extent that it applied to state and local governments because
“RFRA contradicts vital principles necessary to maintain separation of powers and the
federal balance”).
42
See CONN. GEN. STAT. § 52-571b (2012); IDAHO CODE § 73-402 (2000); N.M. STAT.
ANN. § 28-22-3 (2000); S.C. CODE ANN. § 1-32-40 (1999); TEX. CIV. PRAC. & REM. CODE
2017] EMPLOYER-MANDATED VACCINATION POLICIES 893
government employer in a state with a RFRA or similar law imposes a vaccine
mandate with no exemption for employees whose religious beliefs oppose
vaccination, the employer will have to prove that a compelling government interest
justifies the mandate and that the mandate is the least restrictive means of furthering
that interest.
43
Government-run healthcare facilities may be able to meet this burden if they
can prove that vaccination is necessary to protect vulnerable patients, but they will
likely have to exempt employees with religious objections if those employees do not
have patient contact or if the employer can accommodate their religious beliefs in
other ways. For nonhealthcare employers, it may be very difficult—or impossible—
to identify a compelling interest that can only be furthered by mandatory
vaccination. However, this does not mean that all vaccine mandates are unlawful;
instead, it merely requires government employers to consider exemptions or other
accommodations for employees with religious objections. These laws do not apply
to and, therefore, do not affect private employers.
44
D. Title VII of the Civil Rights Act
While private employers are not bound by the federal RFRA or state statutes
patterned after the federal RFRA, Title VII of the Civil Rights Act of 1964 (“Title
VII”) does apply to private employers
45
and prohibits religious discrimination.
Under Title VII it is unlawful for an employer “to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . religion.”
46
To prevail on a Title VII religious discrimination claim,
the employee must first show that “a bona fide religious practice conflicts with an
ANN. § 110.003 (1999); FLA. STAT. § 761.03 (1998); 775 ILL. COMP. STAT. ANN. 35/15
(1998); R.I. GEN. LAWS § 42-80.1-3 (1993). Some state constitutions provide similar
protection. See ALA. CONST. art. I, § 3.01 (“The purpose of the Alabama Religious Freedom
Amendment is to guarantee that the freedom of religion is not burdened by state and local
law; and to provide a claim or defense to persons whose religious freedom is burdened by
government.”).
43
See, e.g., CONN. GEN. STAT. § 52-571b (2012):
The state or any political subdivision of the state may burden a person’s exercise
of religion only if it demonstrates that application of the burden to the person (1)
is in furtherance of a compelling governmental interest, and (2) is the least
restrictive means of furthering that compelling governmental interest.
44
See, e.g., id. (restricting actions by the state and political subdivisions, not private
entities).
45
42 U.S.C. § 2000e(b) (2012). (“The term ‘employer’ means a person engaged in an
industry affecting commerce who has fifteen or more employees for each working day in
each of twenty or more calendar weeks in the current or preceding calendar year, and any
agent of such a person . . . .”).
46
42 U.S.C. § 2000e-2(a)(1) (2012).
894 UTAH LAW REVIEW [NO. 5
employment requirement and was the reason for [an] adverse employment action.”
47
If the employee makes this prima facie case, then the burden shifts to the employer
to show that: (1) it reasonably accommodated the employee, or (2) that offering a
reasonable accommodation would cause it to suffer an undue hardship.
48
An
accommodation constitutes an “undue hardship” if it imposes more than a de
minimis cost on the employer.
49
Accordingly, an employer must consider whether to
exempt employees with religious objections from a mandatory vaccination policy,
or whether an accommodation—such as an exemption—will impose a significant
cost.
50
If the cost is more than de minimis, then the employer can enforce the mandate
even against employees with religious objections without violating Title VII.
E. The Americans with Disabilities Act
The Americans with Disabilities Act (“ADA”) makes it unlawful for a covered
employer to “discriminate against a qualified individual on the basis of disability in
regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.”
51
The ADA defines disability as: “(A) a physical or
mental impairment that substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such
an impairment.”
52
47
See, e.g., Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 133 (1st Cir. 2004)
(setting out the two-part test applied by the First Circuit Court of Appeals to Title VII
religious discrimination claims).
48
Id.
49
Id. at 134.
50
Id.; see also Robinson v. Children’s Hosp. Boston, No. 14-10263-DJC, 2016 WL
1337255, at *9 (D. Mass. Apr. 5, 2016); Rachel K. Baden, Can Health Care Facilities
Require Their Employees to Receive the Influenza Vaccine?, 40 OHIO N.U. L. REV. 277, 288
(2013).
51
42 U.S.C. § 12112(a) (2012). The ADA applies to private employers with “15 or
more employees for each working day in each of 20 or more calendar weeks in the current
or preceding calendar year.” 42 U.S.C. § 12111(5)(A) (2012).
52
42 U.S.C. § 12102 (2012).
2017] EMPLOYER-MANDATED VACCINATION POLICIES 895
Discrimination is not limited to termination or refusal to hire; an employer also
violates the ADA by “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability
who is an applicant or employee”
53
unless “the accommodation would impose an
undue hardship”
54
on the employer.
55
“Undue hardship means, with respect to the
provision of an accommodation, significant difficulty or expense incurred by a
covered entity . . . .”
56
Thus, undue hardship is a higher standard under the ADA
than under Title VII.
If an employee has a physical or mental limitation due to a disability, the ADA
may require accommodation in the form of an exemption from a vaccine mandate
unless the exemption will cause an undue hardship.
57
Healthcare employers may
choose not to provide medical exemptions for employees who interact with
vulnerable patient populations if no reasonable accommodation will adequately
53
42 U.S.C. § 12112(b)(5)(A) (2012).
54
Id.
55
Id.; Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 490 (8th Cir. 2002) (“An ADA
claimant must make a prima facie showing that he (1) has a disability within the meaning of
the ADA, (2) is able to perform the essential functions of the job, with or without reasonable
accommodation, and (3) suffered an adverse employment action as a result of the
disability.”).
56
29 C.F.R. § 1630.2(p) (2012). The regulations set out the factors that courts should
consider when assessing whether an undue hardship exists:
(i) The nature and net cost of the accommodation needed under this part, taking
into consideration the availability of tax credits and deductions, and/or outside
funding;
(ii) The overall financial resources of the facility or facilities involved in the
provision of the reasonable accommodation, the number of persons employed at
such facility, and the effect on expenses and resources;
(iii) The overall financial resources of the covered entity, the overall size of the
business of the covered entity with respect to the number of its employees, and
the number, type and location of its facilities;
(iv) The type of operation or operations of the covered entity, including the
composition, structure and functions of the workforce of such entity, and the
geographic separateness and administrative or fiscal relationship of the facility or
facilities in question to the covered entity; and
(v) The impact of the accommodation upon the operation of the facility, including
the impact on the ability of other employees to perform their duties and the impact
on the facility’s ability to conduct business.
Id.
57
See U.S. Equal Emp. Opportunity Comm’n, Pandemic Preparedness in the
Workplace and the Americans with Disabilities Act, https://www.eeoc.gov/facts/pandemic_
flu.html#36 [https://perma.cc/8K62-8BLC] (last modified Oct. 9, 2009) (“An employee may
be entitled to an exemption from a mandatory vaccination requirement based on an ADA
disability that prevents him from taking the influenza vaccine. This would be a reasonable
accommodation barring undue hardship (significant difficulty or expense).”).
896 UTAH LAW REVIEW [NO. 5
protect patients.
58
But such exemptions will rarely be necessary because the
employee must first establish a disability under the ADA and then establish that the
disability requires an accommodation with respect to vaccination.
59
In other words,
an allergy to the vaccine by itself may not qualify the employee as disabled under
the ADA, in which case no accommodation is required. Moreover, even a disabled
employee must prove that the disability necessitates the exemption; if the disability
is unaffected by vaccination, then exemption is not an accommodation of the
physical or mental limitations of the disability.
60
It is possible that some courts will find that an employer is barred by the ADA
from even inquiring about whether an employee is vaccinated.
61
The ADA states
that “[a] covered entity shall not require a medical examination and shall not make
inquiries of an employee as to whether such employee is an individual with a
disability . . . unless such examination or inquiry is shown to be job-related and
consistent with business necessity.”
62
The purpose of this prohibition is to prevent
employers from asking questions that are “likely to elicit information about a
disability.”
63
In Conroy v. New York State Department of Correctional Services,
64
the Second
Circuit Court of Appeals held that an employer’s policy requiring employees to
submit a “general diagnoses as part of a medical certification procedure following
certain absences”
65
from work constituted a disability-related inquiry.
66
Other
58
See discussion infra Part II.D.
59
42 U.S.C. § 12112 (2012) (Employers are required to make “reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability”) (emphasis added).
60
See Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 164 (5th Cir. 1996) (“[I]t is
important to distinguish between an employer’s knowledge of an employee’s disability
versus an employer’s knowledge of any limitations experienced by the employee as a result
of that disability. This distinction is important because the ADA requires employers to
reasonably accommodate limitations, not disabilities.”).
61
Some have posited that merely asking whether an employee has been vaccinated
might run afoul of the ADA. See John Tozzi, Can Your Boss Make You Get Vaccinated?,
BLOOMBERG (Jan. 22, 2015), https://www.bloomberg.com/news/articles/2015-01-22/can-
employers-mandate-vaccinations-for-employees- [https://perma.cc/PZ7G-ET9H ] (“Even
asking about workers’ vaccination status can be thorny. Employers are barred from
discriminating on the basis of medical status (under the Americans with Disabilities Act) or
religion (under the Civil Rights Act), and questions about immunizations could reveal
both.”).
62
42 U.S.C. § 12112(d)(4)(A) (2012).
63
U.S. Equal Employment Opportunity Comm’n, Enforcement Guidance: Disability-
Related Inquiries and Medical Examinations of Employees Under the Americans with
Disabilities Act, (July 27, 2000), https://www.eeoc.gov/policy/docs/guidance-
inquiries.html#N_39_ [https://perma.cc/KM27-DFBT].
64
333 F.3d 88 (2d Cir. 2003).
65
Id. at 92.
66
Id.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 897
circuits have construed the ADA more narrowly.
67
In a case with facts similar to
those in Conroy—an employer whose policy required employees to submit a
physician’s note indicating “the nature of”
68
the employee’s illness upon returning
to work—the Sixth Circuit held that it was not a disability-related inquiry.
69
The
court noted that no other court had followed Conroy and it declined to do so, stating
that “the Conroy court . . . unnecessarily swept within the statute’s prohibition
numerous legitimate and innocuous inquires that are not aimed at identifying a
disability.”
70
If the court believes that asking about vaccination status is likely to
elicit information about a disability, then the employer would have to prove that the
inquiry is job-related and consistent with business necessity.
F. Occupational Safety and Health Administration
The Occupational Safety and Health Administration (“OSHA”) imposes an
obligation on employers to ensure that the workplace is “free from recognized
hazards that are causing or are likely to cause death or serious physical harm to
[their] employees.”
71
This provision is known as the “general duty clause” and in
some situations it may impose a duty on employers to take steps—including
encouraging or mandating vaccination—to prevent employees from contracting or
spreading serious diseases in the workplace.
72
As illustrated in Safeway, Inc. v. Occupational Safety & Health Review
Commission,
73
even if the employer has complied with applicable safety standards,
it can be liable for violating the general duty clause if the employer knows of an
obvious hazard.
74
The employer in Safeway was cited when employees were injured
trying to use a forty-pound propane tank with a grill designed for use with twenty-
67
See, e.g., Lee v. City of Columbus, 636 F.3d 245, 254 (6th Cir. 2011) (declining to
follow Conroy).
68
Id. at 248.
69
Id. at 254 (“[W]e do not find the requirement that an employee provide a general
diagnosis . . . to be tantamount to an inquiry ‘as to whether such employee is an individual
with a disability or as to the nature or severity of a disability’ under § 12112(d)(4)(A).”)
(citation omitted).
70
Id.
71
29 U.S.C. § 654(a)(1) (1970).
72
See, e.g., U.S. Dep’t of Labor, Occupational Safety & Health Admin., Employer
Guidance: Reducing Health Care Workers’ Exposures to Seasonal Flu Virus,
https://www.osha.gov/dts/guidance/flu/healthcare.html [https://perma.cc/2AZG-8AJC] (last
visited July 24, 2017) (advising healthcare employers to promote, administer, and make the
flu vaccine readily available); see also U.S. Dep’t of Labor, Occupational Safety & Health
Admin., Interim Guidance for Protecting Workers from Occupational Exposure to Zika
Virus, https://www.osha.gov/zika/index.html [https://perma.cc/3XCM-WH2U] (last updated
May 30, 2017).
73
382 F.3d 1189 (10th Cir. 2004).
74
Id. at 1194.
898 UTAH LAW REVIEW [NO. 5
pound tanks.
75
The employees were burned when “a ball of fire”
76
erupted from the
tank as they tried to adjust it.
77
The employer objected to the citation, in part because
it had complied with relevant regulations.
78
However, the Tenth Circuit noted that such compliance will not automatically
relieve the employer of liability.
Where the employer has knowledge of an obvious hazardous condition
. . . compliance with specific standards failing to address the hazard does
not relieve the employer of the responsibility under the general duty clause
to provide its employees with a place of employment which is free from
recognized hazards.
79
The Tenth Circuit found that “there was substantial evidence to support the
[Administrative Law Judge’s] finding that the use of the forty-pound tank was a
recognized hazard and that Safeway was aware of the hazard.”
80
Specifically, the
forty-pound tank had a warning against use with grills designed for smaller tanks;
supervisors knew that the forty-pound tank did not fit properly under the grill, which
the grill instructions noted was necessary for safe use; and the supervisors knew that
the employees were unable to use the tank until they attached an adapter.
81
In
addition, the judge found that the hazard could have been eliminated simply by using
a twenty-pound tank.
82
In Duriron Co., Inc. v. Secretary of Labor: U.S. Occupational Safety & Health
Review Commission,
83
a steel and iron castings manufacturer was cited for violation
of the general duty clause because it recognized that heat stress was a hazard likely
to cause serious injury or death to workers in its workplace but failed to protect its
employees from the hazard.
84
During a heatwave, an employee “began blacking out,
became dizzy, light-headed and was unable to see the digital readout on the transfer
ladle of the machine. Fearing that he might pass out and fall into the molten metal,
[the employee] asked his foreman for reassignment.”
85
Not only was the heat hazard
recognized in the industry, Duriron had taken preliminary steps to mitigate the
hazard.
86
The Sixth Circuit upheld the OSHA Review Commission’s finding of a
violation even though no employee actually suffered serious injury or death.
87
75
Id. at 1192.
76
Id.
77
Id.
78
Id. at 1194.
79
Id.
80
Id. at 1195.
81
Id.
82
Id.
83
750 F.2d 28 (6th Cir. 1984).
84
Id. at 30.
85
Id. at 29.
86
Id. at 30.
87
Id. Although the employee collapsed while on the job one day and passed out the
2017] EMPLOYER-MANDATED VACCINATION POLICIES 899
At least with respect to some illnesses, it would be fairly easy for OSHA to find
that an employer knew that the risk of illness is a known hazard. For example,
OSHA’s published guidance informs employers that “[w]orkers who perform
certain types of healthcare tasks for patients who may have the flu are at a higher
risk of exposure to the seasonal flu virus and need additional precautions to protect
them from workplace infection.”
88
The first recommendation is that employers
promote vaccination and make vaccines readily accessible to employees.
89
“Vaccination is the most important way to prevent the spread of the flu. Healthcare
and emergency medical services personnel are a priority group for receiving the flu
vaccine.”
90
This advice strongly implies that an employer that fails to at least
encourage and enable at-risk employees to be vaccinated may violate OSHA’s
general duty clause. However, no court has held that OSHA obligates an employer
to require employees to get vaccinated.
G. Other State Laws
In addition to states that have antidiscrimination laws which may require an
employer to accommodate employees with religious objections to vaccination,
91
worker’s compensation laws may require the employer to pay for vaccine-related
injuries if the employee is vaccinated at the employer’s request.
92
Finally, state tort
law may provide the basis for liability if an employer’s failure to encourage or
require its employees to be vaccinated against particular diseases violates a duty of
care owed to employees, vendors, or clients. The most likely basis for tort liability
would be a negligence claim. “The essential elements of a cause of action based on
common law negligence may be stated briefly as follows: the existence of a duty
owed by the defendant to the plaintiff, a breach of that duty, and an injury
proximately caused by that breach.”
93
The greatest challenge for plaintiffs would be
next day, he was not killed and was not alleged to have suffered serious injury. Id. at 29.
88
See Employer Guidance, supra note 72.
89
Id.
90
Id.
91
The Iowa Civil Rights Act of 1965 and the Nebraska Fair Employment Practice Act
(NFEPA) prohibit private employers from discriminating on the basis of religion. See IOWA
CODE §§ 216.1 to 216.21 (2017); NEB. REV. STAT. §§ 48-1101 to 48-1126 (2017). See also
ARIZ. REV. STAT. ANN. § 41-1493.01 (2017) (“[G]overnment shall not substantially burden
a person’s exercise of religion even if the burden results from a rule of general
applicability.”); FLA. STAT. § 761.03 (1998) (“The government shall not substantially burden
a person’s exercise of religion, even if the burden results from a rule of general
applicability. . . .”).
92
Edward P. Richards, Katherine C. Rathbun, & Jay Gold, The Smallpox Vaccination
Campaign of 2003: Why Did It Fail and What Are the Lessons for Bioterrorism
Preparedness?, 64 LA. L. REV. 851, 870 (2004) (“Worker’s compensation claims could be
significant if a person with contraindications to vaccination is inadvertently immunized.”).
93
Ward v. K Mart Corp., 554 N.E.2d 223, 226 (Ill. 1990); see also, e.g., Domagala v.
Rolland, 805 N.W.2d 14, 22 (Minn. 2011) (“To recover for a claim of negligence, a plaintiff
must prove (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4)
900 UTAH LAW REVIEW [NO. 5
to establish a duty in this context. Since courts have never recognized a duty of
employers to mandate vaccination, and many legal experts advise against such
mandates,
94
plaintiffs may have an uphill battle.
Just as was true with federal and state religious protection statutes and other
federal laws, while employers must be aware of these laws and may need to
accommodate or exempt some employees from mandatory vaccination policies, it is
important to acknowledge that none of these laws serves as a blanket prohibition on
such policies.
III. STATE-MANDATED VACCINATIONS
Given the proven safety and effectiveness of many vaccines, states could
choose to impose vaccine mandates, thus relieving employers of the difficult task of
weighing the costs and benefits of vaccination mandates. In fact, all states require
some vaccinations for at least a portion of their populations. This section examines
the enforceability, scope, and limitations of those state laws.
A. Current State Vaccination Statutes
All states have statutes requiring vaccination in specific settings.
95
The most
common compulsory vaccination statutes apply to children who attend public and
private schools and day cares, and people who work in nursing homes and healthcare
facilities.
96
Most states allow exemptions from the vaccine requirements for those
with religious or medical objections and some allow exemptions based on “personal
beliefs.”
97
Many of the vaccination statutes have been challenged in the courts, but
no statute has been struck down.
98
1. Mandatory Vaccinations for Schoolchildren and Day Care Attendees
School vaccination statutes vary by state, with the most important variation
being the types of exemptions available. Most states allow an exemption when
vaccination violates the family’s religious beliefs, and many allow an exemption
that the breach of the duty of care was a proximate cause of the injury.”).
94
See discussion infra Part V.
95
Ctrs. for Disease Control & Prevention, Vaccination Laws, http://www.cdc.gov/phlp/
publications/topic/vaccinationlaws.html [https://perma.cc/E72J-UBZW] (last updated July
20, 2017) (including links to documents and charts cataloging and describing state healthcare
worker and patient vaccination laws, and state school and childcare vaccination laws). “All
states require children to be vaccinated against certain communicable diseases as a condition
for school attendance.” Id. In addition, many states require or encourage health care workers
to be vaccinated against influenza, varicella (chicken pox), pneumococcal disease
(pneumonia), and/or pertussis. Id.
96
Id.
97
Id.
98
Najera & Reiss, supra note 3, at 377–78.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 901
based on “personal beliefs,”
99
which essentially allows parents to refuse to vaccinate
their children for any reason at all. Considering recent outbreaks of diseases that had
been mostly or completely eradicated (such as measles and mumps), states are
reconsidering their exemptions and, in some cases, getting rid of personal belief and
religious exemptions altogether.
California is one such state. Senate Bill 277, which eliminated personal belief
and religious exemptions to the vaccination requirements, was signed into law by
the governor on June 30, 2015.
100
The law faced strong opposition but its passage
was likely due in part to the measles outbreak from December 2014 through
February 2015. That outbreak was traced back to Disneyland in California.
Numerous Disneyland visitors were exposed to the virus and spread it across the
nation when they returned to their homes.
101
Other states have faced legal challenges when they excluded unvaccinated
children from school and the courts have consistently upheld the compulsory
vaccination laws, even without religious or personal belief exemptions.
102
In New
York, vaccination is mandatory for public school attendance, but the state provides
medical and religious exemptions. However, even students that are granted
exemptions on those grounds may be excluded from school during an outbreak of a
vaccine-preventable disease.
99
CTRS. FOR DISEASE CONTROL & PREVENTION, PUBLIC HEALTH LAW: STATE SCHOOL
IMMUNIZATION REQUIREMENTS AND VACCINE EXEMPTION LAWS (2015),
https://www.cdc.gov/phlp/docs/school-vaccinations.pdf [https://perma.cc/3XZV-496V].
100
S.B. 277, 2015 Leg., (Cal. 2015). The amended statute provides:
Except as provided in this subdivision, on and after July 1, 2016, the governing
authority shall not unconditionally admit to any of those institutions specified in
this subdivision for the first time, or admit or advance any pupil to 7th grade level,
unless the pupil has been immunized for his or her age as required by this section.
CAL. HEALTH & SAFETY CODE § 120335(g)(3) (2017).
101
Ctrs. for Disease Control & Prevention, Measles Cases and Outbreaks,
http://www.cdc.gov/measles/cases-outbreaks.html [https://perma.cc/PR7J-V2A2] (last
updated July 25, 2017) (“The United States experienced a large, multi-state measles outbreak
linked to an amusement park in California. The outbreak likely started from a traveler who
became infected overseas with measles, then visited the amusement park while infectious;
however, no source was identified.”).
102
See, e.g., Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015) (“[W]e
agree with the Fourth Circuit, following the reasoning of Jacobson and Prince, that
mandatory vaccination as a condition for admission to school does not violate the Free
Exercise Clause.”); Martha McCarthy, Student Vaccination Requirements: Can Nonmedical
Exemptions Be Justified?, 320 ED. L. REP. 591, 600 (2015) (“Courts in the initial challenges
uniformly upheld state and municipal vaccination requirements and endorsed the conviction
of parents for violating compulsory attendance laws because their unvaccinated children
were not allowed to enroll in school.”).
902 UTAH LAW REVIEW [NO. 5
In one case, parents filed suit when their children were excluded from attending
school during a chicken pox outbreak because they had not been vaccinated.
103
Some
of the plaintiffs had been granted a religious exemption while another sought but
was denied the religious exemption.
104
The court quickly dismissed the plaintiffs’
substantive due process argument, citing Jacobson v. Commonwealth of
Massachusetts and reaffirming that questions regarding the safety and efficacy of
vaccines must be decided by the legislature, not the courts or individual citizens.
105
“Plaintiffs’ substantive due process challenge to the mandatory vaccination regime
is therefore no more compelling than Jacobson’s was more than a century ago.”
106
The plaintiffs further argued that their exclusion from school during the chicken
pox outbreak violated their rights under the Free Exercise Clause of the First
Amendment.
107
At the time Jacobson was decided, the First Amendment had not yet
been held to apply to the states. Consequently, the Supreme Court did not address
the issue in that case. But the Second Circuit noted that the Court has addressed the
issue in other cases.
The Supreme Court has stated in persuasive dictum . . . that a parent
“cannot claim freedom from compulsory vaccination for the child more
than for himself on religious grounds. The right to practice religion freely
does not include liberty to expose the community or the child to
communicable disease or the latter to ill health or death.”
108
The Second Circuit also relied on a more recent Supreme Court case in which
the Court held that “a law that is neutral and of general applicability need not be
justified by a compelling governmental interest even if the law has the incidental
effect of burdening a particular religious practice.”
109
Accordingly, the Second
Circuit agreed with a previous Fourth Circuit decision that mandatory vaccination
requirements for school attendance do not violate the Free Exercise Clause.
110
The court further noted that it would not violate the Constitution if New York
chose to prohibit the children from attending school for failure to meet the
mandatory vaccination requirements, without providing any exemptions.
111
Instead,
103
Phillips, 775 F.3d at 540–42.
104
Id.
105
Id. at 542–43.
106
Id. at 542.
107
Id. at 543.
108
Id. (quoting Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944)).
109
Id. (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 531 (1993)).
110
Id.
111
Id. Mississippi’s compulsory vaccination previously included an exemption based
on religious beliefs. However, in Brown v. Stone, 378 So.2d 218 (Miss. 1979) the Mississippi
Supreme Court struck down the exemption.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 903
the state provided an exemption for students based on religious beliefs and only
excluded them during an outbreak of a vaccine-preventable disease.
112
The court
concluded that the more limited exclusion was certainly constitutional.
113
In light of
recent outbreaks, several states are now considering eliminating personal belief and
religious exemptions for children attending school as a means of providing greater
protection to children.
114
The Phillips opinion provides support for those changes.
2. State-Mandated Vaccination in Healthcare Settings
While laws mandating vaccines for schoolchildren are intended to protect the
children themselves, laws mandating vaccination of healthcare workers are typically
intended to protect patients who may be uniquely vulnerable to vaccine-preventable
diseases.
115
The advantage of state law mandates is that employers do not have to
worry about Title VII or ADA liability. So long as the state laws hold up against any
legal challenges, the employer cannot be liable for complying with the law, and
while various regulations have faced legal challenges, no statute has ever been struck
down.
116
The exception, which would provide for the exemption of children of parents
whose religious beliefs conflict with the immunization requirements, would
discriminate against the great majority of children whose parents have no such
religious convictions. To give it effect would result in a violation of the Fourteenth
Amendment to the United States Constitution which provides that no state shall
make any law denying to any person within its jurisdiction the equal protection of
the laws, in that it would require the great body of school children to be vaccinated
and at the same time expose them to the hazard of associating in school with
children exempted under the religious exemption who had not been immunized
as required by the statute.
Id. at 223. The current statute contains no religious or personal belief exemptions, although
it does allow an exemption based on medical reasons. MISS. CODE. ANN. § 41-23-37 (2017).
112
Phillips, 775 F.3d at 543.
113
Id.
114
J. D. Heyes, 10 U.S. States Now Considering Mandatory Vaccination, NAT. NEWS
(Apr. 21, 2015), http://www.naturalnews.com/049427_vaccinations_big_pharma_measles_
outbreak.html [https://perma.cc/3C5W-39S5] (citing Reuters report that several states were
considering eliminating religious and personal belief exemptions to vaccine requirements).
115
Michele L. Pearson, Carolyn B. Bridges & Scott A. Harper, Ctrs. for Disease Control
& Prevention, Influenza Vaccination of Health-Care Personnel (Feb. 24, 2006),
http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5502a1.htm [https://perma.cc/58Q6-
LTA7] (“Because HCP [healthcare personnel] provide care to patients at high risk for
complications of influenza, HCP should be considered a high priority for expanding
influenza vaccine use.”).
116
See Najera & Reiss, supra note 3, at 377–78 (citing Alexandra M. Stewart & Sara
Rosenbaum, Vaccinating the Health-Care Workforce: State Law vs. Institutional
Requirements, 125 PUB. HEALTH REP. 615, 616–17 (2010); Wendy J. Parmet, Pandemic
Vaccines—The Legal Landscape, 362 NEW ENG. J. MED. 1949, 1951 (2010)).
904 UTAH LAW REVIEW [NO. 5
However, the laws are far from uniform and states vary with respect to which
vaccines are required, which healthcare personnel must be vaccinated, and what
exemptions, if any, are available.
117
Some state laws are limited to particular
categories of employees and some only require healthcare facilities to implement a
vaccination policy—which may include education and opportunities for employees
to receive the vaccine, but not mandate vaccination.
118
For example, seventeen states
require healthcare workers to receive influenza vaccinations, with or without
exemptions.
119
California, Maine, Oklahoma, and Rhode Island require varicella
(chickenpox) vaccinations for all hospital healthcare workers;
120
only Maine grants
exemptions for nonmedical reasons.
121
California, Nebraska, and Rhode Island require all healthcare workers to be
vaccinated against pertussis, while Louisiana requires parents of newborns in
hospitals to receive the pertussis vaccination but not the healthcare workers.
122
New
York requires parents of newborns in the neonatal, nursery, and obstetrics facilities
to be vaccinated.
123
California, Nebraska, Louisiana, and New York allow
exemptions based on personal beliefs.
124
Even states with mandatory vaccination
117
Vaccination Laws, supra note 95 (linking to documents outlining the healthcare
worker vaccination laws in every state).
118
Maryland’s law is fairly comprehensive for certain diseases. See MD. CODE
REGS. 10.07.02.01, 10.07.02.21-1 (2017) (requiring comprehensive care facilities and
extended care facilities to “request that the employee receive immunization for varicella”);
MD. CODE REGS. 10.07.02.21-1(B)(5), 10.07.02.21-1(B)(8) (2017) (requiring facilities to
“screen all new employees for immunity to common childhood infections such as mumps,
rubella, measles, and chicken pox (varicella), through the use of pre-employment
questionnaires and, if appropriate, serologic testing for presence of antibodies of these
diseases.” Maryland law further requires these facilities to “inquire about a history of
varicella for each new employee. If the employee’s history is unclear, then the facility shall
request a serology for varicella.”). By comparison, Maine’s law is not especially rigorous.
See 10-144 ME CODE R. § 264-2(C) (2010) (requiring that hospitals “adopt and implement a
policy that recommends and offers annual immunization against seasonal influenza to all
personnel who provide direct care to residents of the facility.”).
119
CTRS. FOR DISEASE CONTROL & PREVENTION, MENU OF STATE HOSPITAL
INFLUENZA VACCINATION LAWS (2015), http://www.cdc.gov/phlp/docs/menu-
shfluvacclaws.pdf [https://perma.cc/YEJ3-DA93]. Some states allow philosophical
(California, Illinois, Maine, Maryland, Massachusetts, Nebraska, Oklahoma, Oregon, Rhode
Island, and Tennessee) or religious (Illinois, Maine, Massachusetts, New Hampshire)
exemptions. Id. Others only allow medical exemptions (Colorado). Id.
120
CTRS. FOR DISEASE CONTROL & PREVENTION, MENU OF STATE HEALTHCARE
FACILITY VARICELLA VACCINATION LAWS (2016), http://www.cdc.gov/phlp/docs/menu-
varicella.pdf [https://perma.cc/B4ZD-43FG].
121
Id.
122
CTRS. FOR DISEASE CONTROL & PREVENTION, MENU OF STATE HEALTHCARE
FACILITY PERTUSSIS VACCINATION LAWS (2016), http://www.cdc.gov/phlp/docs/menu-
pertussis.pdf [https://perma.cc/Y7FL-E2HL].
123
Id.
124
Id.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 905
laws may not have strong (or any) enforcement mechanisms.
125
Some scholars have
argued that state laws are the best mechanism for ensuring high vaccination rates in
healthcare facilities,
126
but if the state laws only encourage vaccination, or allow
nonmedical exemptions, they may not be as effective as employer mandates.
127
B. Mandatory Vaccination for Larger Populations
Vaccination laws that apply to larger segments of the population are rare. In
Jacobson, the compulsory smallpox vaccination law applied to all inhabitants in the
city of Cambridge.
128
More recently, states have not considered such broad
requirements to be necessary. This may be due in large part to high vaccination rates
courtesy of childhood vaccination recommendations and requirements. Moreover,
imposing such a requirement likely would be viewed as extreme and heavy-handed
in the absence of a compelling need, such as an outbreak of a serious and highly
contagious disease.
Legislators would need to identify a specific and severe public health threat that
could be substantially reduced by immunization before it would be politically
feasible, much less legally defensible. While courts have relied on Jacobson to
uphold vaccination requirements for schools and hospitals, the Supreme Court in
that case cautioned that regulations that are arbitrary, unreasonable, or “so far
beyond what was reasonably required for the safety of the public”
129
could violate
the Constitution.
130
Yet, in light of declining childhood vaccination rates and a rise
in homeschooling—which may allow parents to avoid the obligation to immunize
their children before attending school—outbreaks of vaccine-preventable diseases
are more likely and are already occurring. Accordingly, in the future, states may
have to seriously consider mandatory vaccination of adults during outbreaks, or
threats of outbreaks, of vaccine-preventable diseases.
IV. HEALTHCARE EMPLOYER VACCINE MANDATES
Healthcare workers infected with contagious diseases present an obvious threat
to the patients with whom they come in contact. At least with respect to vaccine-
preventable diseases, high vaccination rates in healthcare facilities can reduce the
125
See Najera & Reiss, supra note 3, at 375.
126
See Alexandra M. Stewart & Marisa A. Cox, State Law and Influenza Vaccination
of Health Care Personnel, 31 VACCINE 827, 830 (2013) (“State-based vaccination
requirements are the more efficient method to increase vaccine uptake among all HCP when
compared to employer-based requirements.”); Najera & Reiss, supra note 3, at 401 (“We
agree with Cox and Stewart that the most cost-effective way to impose mandatory
immunization policies is via state statutes.”).
127
See Najera & Reiss, supra note 3, at 401 (noting that a mandate must address
implementation and enforcement in order to be effective).
128
Jacobson v. Massachusetts, 197 U.S. 11, 12–13 (1905).
129
Id. at 28.
130
Id.
906 UTAH LAW REVIEW [NO. 5
threat of transmission and protect vulnerable patients. However, that has been an
elusive goal for many hospitals and other healthcare facilities.
A. The Uneasy History of Mandatory Hospital Vaccination Policies
The vaccine that is required in healthcare facilities more often than any other is
the flu vaccine. In some respects, it may seem surprising that medical professionals
advocate so strongly in favor of the flu vaccine.
131
It must be administered every
year, which makes it more difficult to achieve desired levels of vaccination in the
population during any particular flu season.
132
Its effectiveness also varies from year
to year because the flu virus is constantly changing and researchers must make
educated guesses about which viruses to target in the vaccine before the start of each
flu season.
133
When researchers guess incorrectly, the vaccine may not provide
protection against the viruses that actually circulate that season.
134
Despite the vaccine’s limitations, it is the best method available for reducing
the number of flu-related illnesses and deaths each year. Although influenza is not
the deadliest disease for which a vaccine is available, hundreds of thousands of
Americans become ill from the flu virus each year. The Centers for Disease Control
and Prevention (“CDC”) estimates that over 55,000 people died from complications
related to the flu and pneumonia (one of the potential complications of the flu) in
2014 alone.
135
Even healthy adults can become ill from the flu, but certain populations are at
far greater risk. Specifically, very young children, especially those younger than two
years of age, people over 65 years of age,
136
pregnant women, people with certain
131
The CDC’s Advisory Committee on Immunization Practices (“ACIP”) recommends
annual flu vaccination, with either the inactivated influenza vaccine (“IIV”) or recombinant
influenza vaccine (“RIV”), for everyone six months old and older. Ctrs. for Disease Control
& Prevention, Vaccination: Who Should Do It, Who Should Not and Who Should Take
Precautions, http://www.cdc.gov/flu/protect/whoshouldvax.htm [https://perma.cc/S5NK-
XARN] (last updated Sept. 7, 2016).
132
See Ctrs. for Disease Control & Prevention, Key Facts About Seasonal Flu Vaccine,
http://www.cdc.gov/flu/protect/keyfacts.htm [https://perma.cc/5ZR6-VET8] (last updated
Mar. 31, 2017).
133
See Ctrs. for Disease Control & Prevention, Selecting Viruses for the Seasonal
Influenza Vaccine, http://www.cdc.gov/flu/about/season/vaccine-selection.htm
[https://perma.cc/Q6U6-6ZBM] (last updated May 4, 2016).
134
See id.
135
Ctrs. for Disease Control & Prevention, Deaths and Mortality,
http://www.cdc.gov/nchs/fastats/deaths.htm [https://perma.cc/D49R-QBXC] (last updated
Mar. 17, 2017).
136
Ctrs. for Disease Control & Prevention, What You Should Know and Do this Flu
Season If You Are 65 Years and Older, http://www.cdc.gov/flu/about/disease/65over.htm
[https://perma.cc/QZ4U-SSJ2] (last updated Jan. 24, 2017) (“In recent years, for example,
it’s estimated that between 71 percent and 85 percent of seasonal flu-related deaths have
occurred in people 65 years and older and between 54 percent and 70 percent of seasonal
flu-related hospitalizations have occurred among people in that age group.”).
2017] EMPLOYER-MANDATED VACCINATION POLICIES 907
medical conditions such as asthma, and people with compromised immune systems
are more likely to develop flu-related complications.
137
Since many patients in
healthcare and long-term care facilities will be in one or more high-risk groups, and
in light of the high risk that employees will transmit the influenza virus to patients,
138
mandatory flu vaccination for healthcare employees is promoted as a reasonable and
prudent means of protecting vulnerable patients.
139
Similarly, some healthcare facilities require personnel who come in contact
with newborns and infants to receive the pertussis vaccine. While pertussis had been
almost completely eliminated in the United States, the number of cases has increased
dramatically in recent years, peaking in 2012 with 48,277 cases nationwide,
including twenty deaths.
140
Over half of babies less than a year old who are
diagnosed with pertussis need to be hospitalized and the disease may result in
death.
141
Until recently, only children received the pertussis vaccine. Currently a
pertussis vaccine is available in combination with the tetanus and diphtheria booster
shot that is given to adolescents (“Tdap”).
142
In addition, pregnant women,
healthcare workers, and adults who did not get the Tdap vaccine as adolescents are
encouraged to get the booster.
143
The rise in the number of pertussis cases and the
serious risk posed to infants who are too young to be fully vaccinated explain why
some healthcare facilities have chosen to encourage or require healthcare employees
to get the pertussis vaccine.
But even though the risks to patients are clear, healthcare facilities have had
difficulty achieving high vaccination rates among their employees. In 1981, the
Advisory Committee on Immunization Practices (“ACIP”) of the CDC
144
first
137
Ctrs. for Disease Control & Prevention, People at High Risk of Developing Flu–
Related Complications, http://www.cdc.gov/flu/about/disease/high_risk.htm [https://perma.
cc/822B-XQNE] (last updated Aug. 25, 2016). There is also some evidence that American
Indians and Alaskan Natives have a higher risk of flu complications. Id.
138
Virginia Mason Hosp. v. Washington State Nurses Ass’n, 511 F.3d 908, 911 (9th
Cir. 2007) (“Studies have shown that staff-to-patient flu transmittal is prevalent in hospitals
and other health facilities because about half of those infected with influenza are
asymptomatic and because as many as 70% of healthcare workers continue to go to work
even when experiencing flu symptoms.”).
139
See Am. Acad. of Family Physicians, AAFP Supports Mandatory Flu Vaccinations
for Health Care Personnel, AAFP (June 13, 2011), http://www.aafp.org/news/health-of-the-
public/20110613mandatoryfluvacc.html [https://perma.cc/3KSU-DSKM].
140
Ctrs. for Disease Control & Prevention, Pertussis (Whooping Cough): Pertussis
Outbreak Trends, http://www.cdc.gov/pertussis/outbreaks/trends.html [https://perma.cc/9Y
R3-ECK7] (last updated Sept. 8, 2015).
141
See Ctrs. for Disease Control & Prevention, Pertussis (Whooping Cough): Fast
Facts, http://www.cdc.gov/pertussis/fast-facts.html [https://perma.cc/8B4T-JMWQ] (last
updated Sept. 8, 2015).
142
See id.
143
See id.
144
The ACIP creates the national standard of care for immunizations. Stewart & Cox,
supra note 126, at 827.
908 UTAH LAW REVIEW [NO. 5
recommended that all healthcare personnel receive the annual influenza vaccine.
145
Although the goal was for 90% of healthcare personnel to have received the flu
vaccine, they never achieved that goal.
146
More than thirty years later, the
vaccination rate among healthcare personnel was only approximately 40%.
147
By the
2011–2012 influenza season, rates had increased to approximately 66.9%, with
physicians and nurses having the highest vaccination rates (77.9%) and staff at long-
term care facilities had much lower rates (52%).
148
While the rates have increased, they are not high enough to protect patients.
Unvaccinated workers contribute to outbreaks, illness, and death in healthcare
facilities.
149
“While research indicates that outbreaks are under-detected and under-
reported, they have been documented across the United States and abroad.”
150
At
least one outbreak in a neonatal intensive care unit was attributed to unvaccinated
hospital staff.
151
Eight of the thirty-three nurses and three patients became ill.
152
Transmission from staff to patients is partially attributed to the fact that many people
who are exposed to diseases and become ill continue to work.
153
Some, but not all, states have passed laws requiring healthcare workers to be
vaccinated. However, the same concerns about protecting patients from contracting
vaccine-preventable illnesses that motivate states to impose mandates have also
motivated healthcare facilities to impose vaccine mandates even when not required
to do so by law.
154
The first hospitals adopted mandatory policies in 2005,
155
and
hundreds more followed in the subsequent decade.
145
Id. Currently, many other healthcare organizations recommend vaccination for
healthcare workers. A list of such organizations has been compiled by the Association of
American Family Physicians (AAFP). See AAFP Supports Mandatory Flu Vaccinations for
Health Care Personnel, supra note 139.
146
Am. Acad. of Family Physicians, supra note 139.
147
See Stewart & Cox, supra note 126, at 827.
148
Id.
149
Id.
150
Id.
151
Id. at 828. Only 63% of medical staff, 50% of auxiliary staff, and a shockingly low
15% of nurses had been vaccinated. Id.
152
Id.
153
Id. “Eleven to 59% of exposed workers can be affected, but continue to work,
transmitting infection to 3–50% of exposed patients.” Id. (citations omitted).
154
See Najera & Reiss, supra note 3, at 382–83; Robinson v. Children’s Hosp. Boston,
No. CV 14-10263-DJC, 2016 WL 1337255, at *2 (D. Mass. Apr. 5, 2016).
155
Najera & Reiss, supra note 3, at 372.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 909
Johns Hopkins Medicine recently mandated flu vaccines for its employees.
156
On its website, it explains why it adopted the policy:
Vaccination for health care personnel has been recommended for years,
yet vaccination rates remain at 45 percent nationally. At Johns Hopkins
Medicine member organizations, rates increased over the years, but they
did not achieve 100 percent despite significant efforts. Overall, voluntary
programs have not been effective at markedly increasing vaccination
rates.
157
While many high-profile hospitals have chosen to mandate vaccines, they represent
only a fraction of American healthcare facilities.
158
And some of those facilities
faced opposition and litigation from individual employees and unions.
159
In Virginia Mason Hospital v. Washington State Nurses Association,
160
the
hospital initially attempted to protect patients by implementing a voluntary
vaccination program through which the hospital offered employees free flu
vaccines.
161
The program began in 1998, but by 2004 the hospital had only achieved
a 55% vaccination rate among the staff.
162
Only after the voluntary vaccination
program failed to achieve a sufficiently high vaccination rate did the hospital choose
to implement a mandatory vaccination requirement.
163
The nurses’ union filed a grievance against the hospital stating its opposition to
the new policy.
164
The grievance was submitted to arbitration to determine whether
the compulsory vaccination policy could be implemented by the hospital “without
bargaining over it with representatives of the union.”
165
The undisputed evidence
established that “the elderly and immune-compromised patient population that
Virginia Mason serves is at high risk for contracting the flu if exposed to it and for
156
Johns Hopkins Med., Mandatory Flu Vaccination Frequently Asked Questions,
http://www.hopkinsmedicine.org/mandatory_flu_vaccination/faq.html [https://perma.cc/9E
LW-8FJD] (last visited July 4, 2017). The policy was implemented beginning with the 2012–
2013 flu season and applies to all Johns Hopkins Medicine entities. Id. Employees can
request accommodation for sincerely held religious beliefs and can request an exception for
medical reasons. Id. “Those who cannot receive the flu vaccine, whether for religious or
medical reasons, will be required to properly wear a protective surgical mask over their
mouth and nose when within 6 feet of any patient and when entering a patient room during
the influenza season.” Id.
157
Id.
158
See id.
159
See id.
160
511 F.3d 908 (9th Cir. 2007).
161
Id. at 912.
162
Id.
163
Id.
164
Id. Only those with religious objections or a documented vaccine allergy were
exempt. Id.
165
Id.
910 UTAH LAW REVIEW [NO. 5
suffering severe and even fatal consequences if infected.”
166
Moreover,
unvaccinated employees posed a direct threat to vulnerable patients.
167
“Studies have
shown that staff-to-patient flu transmittal is prevalent in hospitals and other
healthcare facilities because about half of those infected with influenza are
asymptomatic and because as many as 70% of healthcare workers continue to go to
work even when experiencing flu symptoms.”
168
Those risks have led the American
Academy of Pediatrics and several other medical organizations to “strongly
recommend[]”
169
vaccination of healthcare employees.
170
Notwithstanding this evidence, the arbitrator sustained the union’s grievance
and ordered the hospital to rescind the policy.
171
The hospital filed an application in
federal district court to have the arbitration award vacated. The hospital argued that
“the award was irrational and contrary to public policy because it prevented the
hospital from protecting patient health and thus performing its core mission.”
172
The
district court granted summary judgment to the union, holding in relevant part that
“Virginia Mason did not show any explicit, well-defined, and dominant public
policy that was contravened by the arbitrator’s decision.”
173
The Ninth Circuit Court
of Appeals affirmed.
174
While the district court and Ninth Circuit decisions can be explained by the
considerable deference given to arbitrator’s conclusions with respect to the
collective bargaining agreement, the conclusion that no “explicit, well-defined, and
dominant public policy” was contravened by the decision is troubling from a public
166
Id. at 911.
167
Id.
168
Id. Unvaccinated employees pose a risk to patients even if they do not feel ill because
“[m]ost healthy adults may be able to infect others beginning 1 day before symptoms
develop and up to 5 to 7 days after becoming sick. Some people, especially young children
and people with weakened immune systems, might be able to infect others for an even longer
time.” Ctrs. for Disease Control & Prevention, Key Facts About Influenza (Flu),
http://www.cdc.gov/flu/keyfacts.htm [https://perma.cc/RD6Z-WJTH] (last updated Aug. 25,
2016).
169
See Robinson v. Children’s Hosp. Boston, No. 14-10263-DLC, 2016 WL 1337255,
at *2 (D. Mass. Apr. 5, 2016).
170
Id. (naming medical organizations favoring vaccination of healthcare personnel,
including the Centers for Disease Control and Prevention, American Academy of Family
Physicians, American Hospital Association, Society for Healthcare Epidemiology of
America, Infectious Diseases Society of America, Pediatric Infectious Diseases Society,
Association for Professionals in Infection Control and Epidemiology Inc. and American
Public Health Association).
171
Virginia Mason, 511 F.3d at 911.
172
Id. at 913.
173
Id.
174
Id. Further litigation following Virginia Mason adopted a policy requiring
unvaccinated employees to use facemasks. Najera & Reiss, supra note 3, at 382. That policy
was appealed to the National Labor Relations Board. Id. An administrative law judge
ultimately decided that the union waived its collective bargaining right in that case. Id.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 911
health and public policy perspective.
175
In essence, the Virginia Mason rationale
allows unions to challenge and delay measures deemed necessary by trained public
health and medical professionals to protect sick and vulnerable patients. The
Virginia Mason arbitrator and affirming courts failed to acknowledge that a future
plaintiff would have abundant evidence of the well-known risks posed by
unvaccinated healthcare workers and the benefits of compulsory vaccination.
Moreover, merely encouraging or recommending vaccination—as advocated by the
nurses’ union
176
—results in far lower vaccination rates than a requirement.
Recently, a federal district court sided with a hospital that terminated an
employee who refused to comply with the hospital’s mandatory flu vaccination
policy.
177
In Robinson v. Children’s Hospital Boston,
178
the plaintiff was an
administrator who had significant contact with patients.
179
In 2011 the hospital
implemented a mandatory flu vaccination policy that applied to all employees and
others—including contractors and volunteers—who worked or accessed patient-care
areas.
180
The plaintiff, Leontine Robinson, refused to be vaccinated on the ground
that taking the vaccine violated her religious beliefs.
181
Although the hospital
assisted her in her attempts to find another position at the hospital that would not
require vaccination, she was unable to find such a position and was eventually
terminated.
182
Robinson sued the hospital, claiming that her termination violated Title VII.
183
The district court analyzed the Title VII claim under the First Circuit’s two-part
framework: first, the plaintiff must make a prima facie case that an adverse
employment action was taken because an employment requirement conflicted with
the employee’s bona fide religious practice;
184
second, if the employee establishes
175
Id.; Stewart et al., supra note 3, at 358–59.
176
The union stated that “although ‘receiving influenza vaccine is a good choice for
most nurses, it is just that—a choice’ and that ‘receipt of any medical treatment is up to the
individual.’” Virginia Mason, 511 F.3d at 912 (quoting the union’s grievance).
177
Robinson v. Children’s Hosp. Boston, No. 14-10263-DJC, 2016 WL 1337255, at *9
(D. Mass. Apr. 5, 2016).
178
No. 14-10263-DJC, 2016 WL 1337255 (D. Mass. Apr. 5, 2016).
179
Id. at *2.
180
Id.
181
Id. at *3–4. Initially, Robinson objected because the vaccine contained pork
byproduct. The hospital offered to give her a pork-free vaccine but she refused, apparently
because her religion prohibited taking any vaccines. Id. at *3.
182
Id. at *4. She applied and interviewed for one such position, but she was not offered
the job. Id.
183
Id. Robinson also brought a claim under a similar state civil rights statute. Id. The
court ruled that the state statute was substantially similar to the federal claim and it failed for
the same reasons. Id. at *10 n.7.
184
Id. at *5.
912 UTAH LAW REVIEW [NO. 5
the prima facie case, the employer then has the burden of proving that it offered a
reasonable accommodation, or that a reasonable accommodation would create an
undue hardship.
185
The hospital claimed that it reasonably accommodated Robinson;
alternatively, “any accommodation would have been an undue hardship.”
186
The court agreed that the hospital had reasonably accommodated Robinson by:
(1) granting her a temporary exemption while it reviewed her medical records to
determine whether she was entitled to a permanent medical exemption;
187
(2)
assisting her in her efforts to find a new position at the hospital; (3) allowing her to
use two months of accrued earned time to find a position outside of the hospital plus
another two weeks when she had not found a job at the end of the two months; and
(4) treating her termination as a voluntary resignation so that she would be eligible
to apply for positions at the hospital in the future.
188
Rejecting Robinson’s argument that the hospital should have made a greater
effort to help her find a new position within the hospital, the court noted that Title
VII does not obligate employers to create positions to accommodate an employee’s
religious beliefs.
189
Moreover, employers are only required to provide a reasonable
accommodation, not the employee’s preferred or requested accommodation.
190
“[O]nce the employer has reasonably accommodated the employee’s religious
needs, the inquiry is over. . . . An employer ‘need not further show that each of the
employee’s alternative accommodations would result in undue hardship.’”
191
Finally, the district court held that granting Robinson’s request to allow her to
keep her job and allowing her to continue to have patient access would create an
undue hardship for the hospital.
192
An accommodation creates an undue hardship if
it results in a “more than de minimis cost” to the employer.
193
Costs can be economic
or noneconomic, and can include increased safety risks or increased risk of legal
liability.
194
The hospital argued that granting Robinson’s requested accommodation
would have increased the risk that influenza would be transmitted to vulnerable
patients.
195
Concluding that “accommodating Robinson’s desire to be vaccine-free
185
Id.
186
Id. at *6. The hospital also argued that “no reasonable jury could find that Robinson
had a bona fide religious belief that precluded vaccination,” but the court declined to address
that claim since it found in the hospital’s favor on the other two grounds. Id.
187
Id. at *8. The hospital ultimately determined that she did not qualify for a medical
exemption. Id. at *4.
188
Id. at *8. Ms. Robinson had an adverse reaction to a prior vaccination and the
hospital encouraged her to get medical documentation of that event to submit in support of
her request for a medical exemption. Id. at *4.
189
Id. at *8.
190
Id. at *6.
191
Id. (citations omitted) (quoting Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68
(1986)).
192
Id. at * 8.
193
Id. (quoting Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 134 (1st Cir. 2004)).
194
Id.
195
Id. at *9. According to the hospital’s statement of undisputed facts, “[t]he Hospital’s
patient population includes some of the most critically ill infants, children and adolescents
2017] EMPLOYER-MANDATED VACCINATION POLICIES 913
in her role would have been an undue hardship because it would have imposed more
than a de minimis cost,” the court granted summary judgment in favor of the
hospital.
196
B. Why Mandates Are Not Ubiquitous
It is worth considering why more hospitals have not imposed vaccine mandates.
First, the Virginia Mason experience demonstrates that even some healthcare
workers resist vaccination. If unions can successfully challenge mandatory
vaccination policies, then hospitals with unionized employees may not be able to
unilaterally implement the policies. Second, the risk of liability if hospitals do not
mandate vaccinations currently seems very low. There are no published cases of
patients successfully suing a hospital because the patient contracted influenza from
an unvaccinated healthcare worker.
197
In fact, the absence of such cases was noted
in Virginia Mason:
Hospitals theoretically could be liable under respondeat superior or other
theories of corporate negligence for the unprofessional conduct of their
nurse employees,
198
but neither Virginia Mason nor [the Washington State
Health Association] has cited a single example of a hospital facing legal
action because a patient contracted the flu from a health care worker.
199
Without proof of a legal and regulatory consensus in support of mandatory
vaccinations, the court would not overturn the arbitrator’s decision on public policy
grounds.
200
In addition, a hospital will not be liable unless the patient can show that the
hospital failed to exercise reasonable care.
201
Given that most hospitals do not have
vaccine mandates, and the Equal Employment Opportunity Commission (“EEOC”)
in the world. Even in healthy infants and children, the influenza virus can be fatal and the
risk of infection and fatality is higher within the Hospital’s patient population.” Id. at *2
(citations omitted).
196
Id. at *10.
197
See Virginia Mason Hosp. v. Wash. State Nurses Ass’n, 511 F.3d 908, 916 (9th Cir.
2007) (noting that neither the hospital seeking to enforce its mandatory vaccination policy
nor an amicus that filed a brief in support of the hospital had “cited a single example of a
hospital facing legal action because a patient contracted the flu from a health care worker”).
198
The Washington State Health Association (“WSHA”) was an amicus in the case. Id.
The WSHA noted that Washington’s Uniform Disciplinary Act, WASH. REV. CODE
§ 18.130.180(15), made it a violation of professional standards for a nurse to “[e]ngag[e] in
a profession involving contact with the public while suffering from a contagious or infectious
disease involving serious risk to public health.” Id. (quoting WASH. REV. CODE
§ 18.130.180(15) (2010)).
199
Id.
200
Id. at 917.
201
Keller v. Koca, 111 P.3d 445, 447 (Colo. 2005).
914 UTAH LAW REVIEW [NO. 5
recommends encouraging but not requiring employee vaccination, hospitals have
strong evidence that their policies are reasonable without a mandate. However, as
more hospitals and states impose vaccine mandates, those that do not will find it
more difficult to prove that failure to do so is reasonable. Additionally, if the
judgment in Robinson is upheld on appeal and other courts follow and uphold
mandatory vaccination policies, the risk of liability will increase. Finally, even a
single case of a patient successfully suing a hospital after contracting a vaccine-
preventable illness from an unvaccinated healthcare worker may be sufficient to
convince more healthcare facilities to implement compulsory vaccination policies.
V. OTHER EMPLOYERS: FINDING A DUTY, WEIGHING THE RISKS
It is understandable that most vaccination statutes and policies target healthcare
facilities, children in schools, and day care settings. Requiring vaccinations before
children enter school or day care protects those who may be more likely to transmit
and catch vaccine-preventable illnesses, and who may suffer more severe symptoms
than adults will suffer. To the extent that childhood vaccinations lead to immunity
that persists into adulthood, such policies also ensure high vaccination rates for the
general public. Vaccinating healthcare workers also protects uniquely vulnerable
patients.
Aside from these two groups, mandatory vaccination policies are discouraged
because of concerns about liability for religious or disability discrimination and a
general sense that employees will oppose such policies as an intrusion on their
personal liberties. Moreover, a plaintiff who alleges that an employer is liable for
failing to require its employees to be vaccinated faces the daunting task of
identifying a duty owed by the employer to the plaintiff and a breach of that duty.
This section identifies additional categories of employers who might consider
imposing a mandatory vaccination requirement. It then considers whether each of
those employers might owe a duty to an individual or group that requires the
employer to impose a vaccine mandate. Whether a duty exists is a question of law
to be decided by the court,
202
which should consider “the risk involved, the
foreseeability of the injury weighed against the social utility of the actor’s conduct,
the magnitude of the burden of guarding against injury or harm, and the
consequences of placing the burden on the actor.”
203
In the context of vaccinations,
this requires weighing the burden of imposing requirements on reluctant or
unwilling employees against the risks and costs associated with vaccine-preventable
diseases. Finally, this section discusses how employers might draft a policy to
minimize the litigation risk.
202
Id.
203
Id. at 448.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 915
A. School Employees
All states require schoolchildren to be vaccinated before attending school, but
no states require teachers, other school employees, or volunteers to be vaccinated.
204
Vaccinating adults may not be necessary to protect the children if the vaccination
rate of the student body is sufficient to establish herd immunity,
205
but if student
vaccination rates are lower than that threshold, unvaccinated faculty and staff could
pose dangers to students as well as other faculty, staff, and parents. Unvaccinated
teachers could pose a threat to children who are unable to be vaccinated due to
medical conditions, religious beliefs, or children who were vaccinated but did not
develop immunity to the disease. Unvaccinated adults might also transmit a vaccine-
preventable disease to a child who may not get seriously ill, but might infect a family
member with a compromised immune system or who is too young to be vaccinated.
Yet these risks may not justify a vaccine mandate. While unvaccinated adults
may pose a risk to others in the school, it does not automatically follow that the
schools owe a duty to any individual or group, or that unvaccinated adults pose a
litigation risk. Assuming there is no evidence of an intent to harm students, a plaintiff
who contracted a vaccine-preventable illness from a school employee would likely
bring a negligence claim. The plaintiff would have to prove: (1) the school owed a
duty to the plaintiff; (2) the school breached that duty; and (3) the school’s breach
of its duty caused the plaintiff’s injury.
206
Specifically, in order to hold the school
liable on a negligent supervision theory, the plaintiff would need to prove that the
school had “a duty to prevent an unreasonable risk of harm to third persons to whom
the employer knows or should have known that the employee would cause harm.”
207
A plaintiff may have difficulty establishing the existence of a duty and proving that
there is an unreasonable risk of harm.
204
See Vaccination Laws, supra note 95 (discussing and linking to state school
vaccination laws and noting that all states require schoolchildren to be vaccinated; however,
none of those laws require vaccination of adults working in the schools).
205
Herd immunity (or also known as community immunity) is defined as:
A situation in which a sufficient proportion of a population is immune to an
infectious disease (through vaccination and/or prior illness) to make its spread
from person to person unlikely. Even individuals not vaccinated (such as
newborns and those with chronic illnesses) are offered some protection because
the disease has little opportunity to spread within the community.
Ctrs. for Disease Control & Prevention, Glossary, http://www.cdc.gov/vaccines/terms/
glossary.html [https://perma.cc/JZ6Q-JE5L] (last updated Aug. 17, 2015).
206
See Keller, 111 P.3d at 447 (stating the elements of a negligence claim: “(1) the
existence of a legal duty to the plaintiff; (2) the defendant breached that duty; and (3) that
the breach of the duty caused the harm resulting in damages to the plaintiff.”).
207
Id. at 448.
916 UTAH LAW REVIEW [NO. 5
While schools certainly have a duty to protect students from unreasonable risks
of harm, if the vaccination rate in the community is high, it will be difficult to
establish that the school should have known that failing to mandate vaccines for
employees would result in harm. Likewise, while the social utility of vaccinating
school employees may be high, if all or nearly all the children are vaccinated it is
probably unforeseeable that a school or district’s choice not to require vaccination
of all adults would result in transmission of a vaccine-preventable illness.
208
Even if
a plaintiff can make out a prima facie case of negligence, public schools may have
immunity to the suit that bars recovery.
209
However, during an outbreak or in a community with lower vaccination rates,
schools who do not have the shield of immunity may be at greater risk for liability.
During an outbreak, the risk to students and their families is more obvious and courts
may find that schools have a duty to consider and assess ways to minimize the risk
of transmission in the school. That evaluation should include assessment of the risk
posed by unvaccinated employees as well as unvaccinated children.
For example, in February 2017, several school districts in East Tennessee
closed for up to a week because of high rates of illness and absenteeism among
students, teachers, and substitute teachers.
210
At least some of the ill students and
teachers were diagnosed with the flu and the CDC reported that Tennessee was one
of several states experiencing a high number of influenza-like illnesses.
211
If the
county had low vaccination rates among teachers and staff, perhaps a mandatory
vaccine policy would have resulted in lower rates of teacher infection and the
schools could have remained open.
208
But in an elementary school, many students are likely to have younger siblings who
are too young to be fully vaccinated against diseases such as pertussis or influenza. Arguably,
a teacher or staff member should have known that any disease that they carry into the school
could be transmitted by a student or fellow teacher or staff member to a vulnerable young
child in their household.
209
Compare Crisp Cty. Sch. Sys. v. Brown, 487 S.E.2d 512, 514 (Ga. App. 1997)
(holding that the county school system was a political subdivision of the state and, as such,
was vested with sovereign immunity except where expressly authorized by state law) with
Dermott Special Sch. Dist. v. Johnson, 32 S.W.3d 477, 481 (Ark. 2000) (holding that “school
districts, as political subdivisions, are not entitled to the State’s constitutional sovereign-
immunity protection” but are entitled statutory immunity which limits liability to the extent
of liability insurance).
210
Megan Boehnke & Kristi L. Nelson, Knox Schools Joins Long List of East Tennessee
Districts Closed for Illness, KNOXVILLE NEWS-SENTINEL (Feb. 6, 2017),
http://www.knoxnews.com/story/news/education/2017/02/06/knox-county-schools-joins-
long-list-east-tennessee-school-districts-closed-illness/97559328/ [https://perma.cc/U9UU-
CWBE].
211
Id. (“School officials have seen confirmed cases of influenza, a non-flu respiratory
illness and an intestinal bug, said Melissa Massie, executive director of student support
services.”).
2017] EMPLOYER-MANDATED VACCINATION POLICIES 917
Some school districts have required unvaccinated children to remain home
during an outbreak;
212
prudence might warrant requiring unvaccinated teachers and
other employees to be absent as well. Similarly, if vaccination rates in the
community or the school fall below the level necessary for herd immunity, a court
could find that unvaccinated employees in close contact with students pose an
unreasonable risk of harm. Courts are most likely to find a duty with respect to
diseases that are highly contagious, and for which there exists a vaccine that is
effective with a low likelihood of serious side effects.
One example is the measles virus. A person with measles will generally first
develop a fever, runny nose, cough, red eyes, and sore throat—all symptoms that
can easily be mistaken for a common cold.
213
Two or three days after symptoms
begin, a rash develops.
214
The measles virus is very contagious and can spread
through coughing and sneezing.
215
[The] measles virus can live for up to two hours in an airspace where the
infected person coughed or sneezed. If other people breathe the
contaminated air or touch the infected surface, then touch their eyes, noses,
or mouths, they can become infected. Measles is so contagious that if one
person has it, 90% of the people close to that person who are not immune
will also become infected.
216
A person infected with the measles virus is contagious for up to four days before the
telltale rash appears.
217
Given the ease of transmission, the virus can spread quickly through a school
with low vaccination rates. But vaccinating every adult can help. One dose of MMR
vaccine is about 93% effective at preventing measles if exposed to the virus, and
two doses are about 97% effective.
218
Even if an unvaccinated person has already
been exposed to the virus, the measles vaccine can provide some protection from the
212
Phillips v. City of New York, 775 F.3d 538, 540–45 (2d Cir. 2015) (holding that
school’s decision to exclude children who were exempt from vaccination requirements due
to religious objections during a chicken pox outbreak did not violate the student’s rights
under the Due Process Clause of the Fourteenth Amendment or the Free Exercise Clause of
the First Amendment).
213
Ctrs. for Disease Control & Prevention, Measles (Rubeola): Signs and Symptoms,
http://www.cdc.gov/measles/about/signs-symptoms.html [https://perma.cc/JD5T-M5N4]
(last updated Feb. 17, 2015).
214
Id.
215
Ctrs. for Disease Control & Prevention, Measles Vaccination,
http://www.cdc.gov/measles/vaccination.html [https://perma.cc/6B6X-EB4N] (last updated
Nov. 22, 2016).
216
Ctrs. for Disease Control & Prevention, Transmission of Measles,
http://www.cdc.gov/measles/about/transmission.html [https://perma.cc/8EJB-TYG7] (last
updated Mar. 3, 2017).
217
Id.
218
Measles Vaccination, supra note 215.
918 UTAH LAW REVIEW [NO. 5
disease if received within seventy-two hours of initial exposure.
219
In addition to
being highly effective, the MMR vaccine has a low risk of any side effects and an
extremely low risk of serious side effects.
220
Requiring all teachers and school employees to be vaccinated will not prevent
transmission if many students remain unvaccinated. Consequently, a plaintiff who
alleges that failure to vaccinate employees created an unreasonable risk of harm may
have difficulty proving causation. However, if vaccinating school personnel would
have been sufficient to create herd immunity, or if the plaintiff can prove that the
school knew that unvaccinated personnel created a risk for identifiable students,
221
then the school might have a duty to ensure that teachers and other adults who are
in contact with those students do not increase the risk of transmission.
Schools may need to exempt or accommodate employees who have religious
or medical objections, particularly if vaccination rates are sufficiently high with
those exemptions nullifying any potential claim of undue burden. Since school
attendance is mandatory and many parents do not have the option of homeschooling
or sending their children to private schools, public school districts could be found to
have a heightened duty to ensure that teachers and other school employees do not
present an unnecessary health risk.
222
For private schools, parents have the option of
sending their children to a different school, so the defense that parents have
knowingly assumed the risk of sending their children to a school with low
vaccination rates and lenient policies might apply and preclude liability.
223
B. Private Non-Healthcare Employers
Private employers may consider mandating employee vaccination for the
benefit of the business, other employees, or customers. But even if they can do so,
there may be compelling arguments against a mandate. The extent to which the
219
Ctrs. for Disease Control & Prevention, Measles (Rubeola): For Healthcare
Professionals, http://www.cdc.gov/measles/hcp/index.html#immunity [https://perma.cc/32
PR-RRY7] (last updated Mar. 3, 2017). “MMR vaccine, if administered within 72 hours of
initial measles exposure, or immunoglobulin (IG), if administered within six days of
exposure, may provide some protection or modify the clinical course of disease.” Id.
220
According to the CDC, there is a small risk of “febrile seizures (seizures or jerking
caused by fever)” with no long-term effects. In addition, “[s]ome people may experience
swelling in the cheeks or neck. MMR vaccine rarely causes a temporary low platelet count,
which can cause a bleeding disorder that usually goes away without treatment and is not life
threatening. Extremely rarely, a person may have a serious allergic reaction to MMR
vaccine.” Ctrs. for Disease Control & Prevention, Measles, Mumps, and Rubella (MMR)
Vaccine Safety, https://www.cdc.gov/vaccinesafety/vaccines/mmr-vaccine.html
[https://perma.cc/ZC65-6PEF] (last updated May 4, 2017).
221
For example, an immunocompromised student who is at greater risk of catching the
virus or a student who is unable to receive the measles vaccine for medical or religious
reasons and has been exempted from the vaccination mandate applicable to students.
222
Of course, the public schools may have immunity to suit.
223
But if the public schools have similarly low vaccination rates, the defense may not
apply.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 919
employer may have a duty to require vaccinations depends upon a multitude of
factors, including the workplace environment, the degree and context in which
employees interact with one another or with customers, and any unusual
vulnerability of employees, customers, or others with whom they come in contact.
1. Employers’ Ability to Mandate Vaccination for the Benefit of the Employer and
Other Employees
Studies have concluded that employers lose an estimated 7–10 billion dollars
annually in productivity due to the flu.
224
During the 2010–2011 flu season, the flu
was blamed for 100 million lost workdays, and two-thirds of the missed days were
employer-paid sick time.
225
Given the tremendous economic cost to employers,
mandating vaccination against the flu seems like a prudent and obvious solution.
Private employers do not face the same constitutional concerns as government
employers
226
and the vast majority of states have a presumption of at-will
employment.
227
Consequently, there are few legal barriers to vaccine mandates by
private employers.
228
Yet few employers outside of the healthcare industry have
imposed such mandates. In fact, many law firms have published newsletters or blog
posts discouraging their clients from implementing mandatory vaccination policies
and instead suggest that employers educate their employees and encourage
vaccination.
229
224
Patricia Curran, The Economic Effect of Influenza on Businesses, SOC’Y FOR HUMAN
RES. MGMT. (Dec. 13, 2012), https://www.shrm.org/ResourcesAndTools/hr-topics/risk-
management/Pages/Economic-Effect-Influenza-Businesses.aspx [https://perma.cc/AN7H-
2BCZ] (citing a 2011 Walgreens study from September 2011). In a 2007 study, the CDC
calculated approximately $7 billion annual cost in sick days and lost productivity; the total
economic burden of annual influenza epidemics exceeded $87 billion. N.A. Molinari et al.,
The Annual Impact of Seasonal Influenza in the US: Measuring Disease Burden and Costs,
VACCINE (June 28, 2007), http://www.ncbi.nlm.nih.gov/pubmed/17544181
[https://perma.cc/SJ77-DB67].
225
Id.
226
The constitution generally only regulates government action, not action by private
parties. However, Title VII and the Americans with Disabilities Act apply to many private
employers. See discussion infra Part II.D.
227
Najera & Reiss, supra note 3, at 380.
228
See id.
229
See, e.g., Jeanine Conley, Mandatory Flu Vaccination Policies: Tips for the
Upcoming Flu Season, BAKER HOSTETLER (Sept. 5, 2013), http://www.employmentlawspot
light.com/2013/09/mandatory-flu-vaccination-policies-tips-for-the-upcoming-flu-season/
[https://perma.cc/LXP8-DBGK] (cautioning employers about potential discrimination or
civil rights violation claims arising from mandatory vaccination policies); Leech Tishman,
Employers: Be Wary of Vaccine Mandates (Nov. 7, 2011), http://leechtishman.com/publicat
ions/employer-be-wary-of-vaccine-mandates/ [https://perma.cc/P9Y5-3W2V] (warning
clients that “while the prospect of costs savings may be attractive, employers should be wary
when considering whether to require employees to be vaccinated. The potential legal
ramifications and costs could be colossal.”).
920 UTAH LAW REVIEW [NO. 5
Concerns about union opposition and potential liability under Title VII and the
ADA may explain why mandates are so rare. Under Title VII, an employer must
accommodate an employee’s religious objections unless accommodation will
impose an undue hardship.
230
An accommodation imposes an undue hardship if it
will result in “more than a de minimis cost” to the employer.
231
The ADA defines
undue hardship differently and sets a higher standard for employers.
232
“Undue
hardship means, with respect to the provision of an accommodation, significant
difficulty or expense incurred by a covered entity.”
233
The EEOC has also issued guidance to employers in the context of pandemic
234
influenza and noted that the reasonable accommodation requirements under Title
VII and the ADA might necessitate exemptions for employees if the employer
imposes an influenza vaccine requirement. The EEOC concluded that even during a
pandemic, “[g]enerally, ADA-covered employers should consider simply
encouraging employees to get the influenza vaccine rather than requiring them to
take it.”
235
Notwithstanding the EEOC’s advice, it may be worthwhile for some
employers to require at least some vaccinations, even if they allow exemptions for
employees with religious objections or medical disabilities.
Consider companies with many employees whose business demands peak
during flu season.
236
The company can suffer significant losses in productivity,
profits, and experience increased healthcare costs if many key employees are out
with the flu at any given time. Making flu shots available may be sufficient to get a
substantial number of employees to get vaccinated voluntarily, but if vaccine fears
drive down vaccination rates, the employer may consider imposing a mandate. If the
jobs are in high demand and there is a large pool of willing applicants, the mandate
is likely to be successful. In a tight job market, or if opposed by the relevant unions,
the mandate may not be feasible even if it is legal.
237
Compulsory vaccination policies may also be prudent during an outbreak. In
the event of an outbreak of a vaccine-preventable disease such as measles, an
employer may have an incentive to ensure that their workforce is not vulnerable. If
the employer can demonstrate that its workforce is susceptible to an outbreak, that
230
Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 133 (1st Cir. 2004).
231
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 65 (1977).
232
See discussion supra Part II.E.
233
29 C.F.R. § 1630.2(p)(1) (2012) (emphasis added); see discussion supra Part II.E.
234
See Ctrs. for Disease Control & Prevention, Pandemic Basics,
https://www.cdc.gov/flu/pandemic-resources/basics/index.html [https://perma.cc/X8XQ-
F5TW] (last updated Nov. 3, 2016).
235
U.S. Equal Emp. Opportunity Comm’n, Pandemic Preparedness in the Workplace
and the Americans with Disabilities Act, https://www.eeoc.gov/facts/pandemic_flu.html
[https://perma.cc/8K62-8BLC] (last updated Oct. 9, 2009).
236
Examples might include UPS or Amazon during the Christmas holiday season.
237
See Virginia Mason Hosp. v. Washington State Nurses Ass’n, 511 F.3d 908, 912,
917 (9th Cir. 2007) (holding that the hospital could not unilaterally impose a vaccine mandate
without bargaining with the nurses’ union as required by the parties’ collective bargaining
agreement).
2017] EMPLOYER-MANDATED VACCINATION POLICIES 921
an outbreak among its employees would create a serious economic hardship, and
that the required vaccine is safe,
238
the employer will have a strong case for requiring
employees to be vaccinated. Depending upon the factors outlined by the EEOC,
239
the employer may need to accommodate religious or disability-based exemption
requests, and if the employees belong to a union, there may be collective bargaining
requirements.
240
However, if the employer makes the decision carefully and
thoughtfully, the risk that an employee will successfully sue the employer should be
low.
241
2. Do Employers Have a Duty to Mandate Vaccination for the Protection of
Employees, Customers, or Vendors?
Neither the EEOC nor many of the employment law letters, law firm blogs, or
newsletters discuss potential liability for failing to mandate vaccination. The fact
that there have not been any high-profile lawsuits alleging negligence by
employers—much less a finding of liability—likely reinforces the notion that the
risks associated with a mandate are higher than the risk of not imposing a mandate.
In fact, an employee trying to establish liability faces several obstacles to proving
that the employer’s lack of a vaccine mandate resulted in a compensable loss to the
employee. The first and biggest challenge for the employee is establishing that the
employer owed a duty to the employee to prevent transmission of vaccine-
preventable diseases.
242
238
The medical and scientific communities should assess vaccine safety, not the
employee or the employer.
239
Pandemic Preparedness, supra note 235 (“An accommodation poses an ‘undue
hardship’ if it results in significant difficulty or expense for the employer, taking into
account the nature and cost of the accommodation, the resources available to the employer,
and the operation of the employer’s business.”).
240
See Virginia Mason, 511 F.3d at 912, 917 (holding that hospital must comply with
collective bargaining agreement before imposing vaccine mandate).
241
See discussion of other vaccines infra Part VI.
242
Keller v. Koca, 111 P.3d 445, 448 (Colo. 2005) (“To establish liability [for
negligence], the plaintiff must prove that the employer has a duty to prevent an unreasonable
risk of harm to third persons to whom the employer knows or should have known that the
employee would cause harm.”).
922 UTAH LAW REVIEW [NO. 5
OSHA may establish such a duty if the employee can prove that a low
vaccination rate in the workplace created an unsafe or unhealthy environment.
243
During a pandemic or even a local outbreak, the employee may be able to meet this
burden if the conditions at the workplace make transmission between employees—
or between customers and employees—likely.
244
If the risk of contracting a
contagious disease is a hazard under OSHA, the employer has an obligation to
eliminate the hazard.
245
Requiring employees to be vaccinated is one way to fulfill
that obligation.
However, if the employee brings a common law negligence claim, the
employee might have their recovery limited or barred under the doctrine of
avoidable consequences or comparative fault.
246
The most obvious argument would
be that the employee could have protected herself by getting vaccinated. Unless the
employee has a medical condition that makes vaccination unadvisable, it will be
difficult to prove that the employer’s decision not to mandate vaccination for all
employees was the proximate cause of the employee’s illness. Even an employee
who has a compromised immune system or who is unable to be vaccinated for
medical or religious reasons can seek an accommodation from the employer—such
as being allowed to work from home or take paid sick leave during the outbreak.
3. For the Benefit of Customers or Vendors
Businesses that cater to or have high numbers of customers who are pregnant,
parents or caregivers, or children (e.g., Motherhood Maternity, Disneyland, Babies
‘R Us, or a medical supply store) may consider mandatory vaccination of employees
for the benefit of their customers. Not all unvaccinated employees pose a risk to
customers and therefore not all employees need to be vaccinated against all diseases.
However, those who are in sufficiently close contact where a serious, vaccine-
preventable disease can be transmitted, may pose a risk to customers. This in turn
may pose a business or litigation risk to their employers.
The risk of legal liability is probably small for most businesses. While a
business has a duty to its customers, in most cases courts are unlikely to hold that
the duty encompasses protecting customers from vaccine-preventable diseases.
243
See, e.g., Employer Guidance, supra note 72.
244
See id.
245
29 U.S.C. § 654 (2011).
246
Contributory fault shall not bar recovery in an action by a claimant to recover
damages for fault resulting in death or in injury to person or property unless the
claimant bears a greater percentage of fault than the combined percentage of faulty
attributed to the defendants, third-party defendants and persons who have been
released, but any damages allowed shall be diminished in proportion to the
amount of fault attributable to the claimant.
IOWA CODE § 668.3 (2011).
2017] EMPLOYER-MANDATED VACCINATION POLICIES 923
Unless the employees pose a greater risk than the public, there is no reason to believe
that a business must protect its customers from risks that the customer is likely to
encounter anywhere else. Courts would also need to consider the extent to which
customers are responsible for protecting themselves by getting vaccinated. Finally,
proving that the customer contracted a vaccine-preventable disease from the
employee of a particular business may be difficult.
However, the threat of liability may be greater for businesses that target
customers who are unlikely or unable to be vaccinated. For example, a store that
specializes in clothes and furnishings for infants can expect customers to bring their
infants into the store with them, and those infants may be too young to be vaccinated
against many diseases. A judge or jury could find that it is foreseeable that
unvaccinated and vulnerable infants would encounter employees of the store and
that the business’s duty of reasonable care includes an obligation to ensure that the
employees do not pose an unreasonable risk of harm to customers or their infants.
Other factors that may affect liability include whether an employer allowed or
encouraged employees to stay at work when they are sick,
247
whether the employer
encouraged vaccination and how successful any voluntary program has been, and
whether the workplace is cleaned and disinfected adequately and frequently.
Even if a customer cannot successfully sue a business, a business may suffer
economic losses if customers even suspect that an employee transmitted a serious
illness to a customer. The infant clothing store may lose customers if it becomes
known—or believed—that another customer’s infant contracted the flu or pertussis
from an employee of the store. Conversely, customers may be more likely to
patronize a business that publicizes its efforts to protect vulnerable customers
against vaccine-preventable diseases or during an outbreak. A store that targets
parents of young babies may benefit from assuring customers that all its employees
have been vaccinated.
Yet even recent high profile outbreaks do not appear to have motivated
employers to consider mandatory vaccinations. When a measles outbreak in
California was linked to the Disneyland Park and Resort, the Los Angeles Times
reported that five Disney Resort employees had been diagnosed with measles.
248
247
Studies have shown that most American workers go to work even when they are
sick. See Fourth Annual Staples Survey Shows Alarming Increase in Sick People Coming to
Work Contagious, Despite Knowing How to Try to Prevent the Flu, STAPLES (Oct. 21, 2013),
http://staples.newshq.businesswire.com/press-release/products-services/fourth-annual-
staples-survey-shows-alarming-increase-sick-people-com#axzz2iZ3JPWcY [https://perma.
cc/KJ8Y-D96W] (discussing annual survey conducted by office supply company Staples).
Workers refuse to stay home for many reasons, including fear of losing their jobs, the need
for a paycheck and no paid sick leave, fear of getting behind on their work, and employer
insistence. See Eliza Barclay, Many Food Workers Keep Working While Sick, Survey Finds,
NPR (June 6, 2012), http://www.npr.org/sections/thesalt/2012/06/06/154442191/many-
food-workers-keep-working-while-sick-survey-finds [https://perma.cc/QH39-Z9AM]
(discussing food borne illnesses transmitted by people who pick, process, prepare, and sell
food).
248
Rosanna Xia et al., Disney measles outbreak: Resort asks staff for proof they’re
924 UTAH LAW REVIEW [NO. 5
Disney reportedly placed those employees and all other employees who had contact
with those employees on paid leave and asked them to stay home until they could
confirm that they were vaccinated or had developed an immunity to the disease.
249
Disney also offered vaccinations to employees.
250
Despite the outbreak and resulting
public relations challenges, there is no indication that Disney considered requiring
all employees to be vaccinated.
251
Perhaps this is because other unvaccinated
children are a significant risk factor and the park is unlikely to require all guests to
be vaccinated. The same is probably true for most businesses that cater to children
or families with young children. For example, a parent shopping in Babies ‘R Us is
likely to encounter at least as many children as employees. An employer is unlikely
to be found negligent for failing to reduce the risk to a plaintiff if a significant risk
still exists due to other customers because the plaintiff would be unable to prove that
the failure to mandate vaccination of employees—as opposed to contact with other
customers—caused the harm.
252
VI. OTHER VACCINATIONS
Influenza and pertussis vaccines have been available and studied for many
years.
253
The risk of serious complications from either vaccine is far lower than the
risk of serious illness or death from the diseases.
254
Mandating these vaccines for
healthcare workers or those who encounter people who are especially vulnerable to
contracting the diseases and developing serious or life-threatening complications is
not especially controversial. But the experience with these vaccines does not provide
much guidance for states or employers when faced with an outbreak of a disease for
which there is a new vaccine or a vaccine with higher incidences of more serious
complications.
protected, L.A. TIMES (Jan. 21, 2015), http://www.latimes.com/local/lanow/la-me-ln-
disneyland-measles-outbreak-20150121-story.html [https://perma.cc/8JNP-4YVR]. Two of
the employees had been vaccinated; the vaccination status of the other three was unknown.
Id.
249
Employees could provide medical records to prove they had been vaccinated.
Immunity could be established by a blood test. Id.
250
Id.
251
See id. (reporting that Disney employees “who had not been vaccinated or could not
confirm their immunity status were asked to go on paid leave until their status could be
confirmed” but not indicating that Disney required employees to be vaccinated).
252
See Keller v. Koca, 111 P.3d 445, 447 (Colo. 2005) (noting that a successful
negligence claim requires proof that the breach of the duty caused the plaintiff’s harm).
253
Ctrs. for Disease Control & Prevention, Influenza (Flu) Vaccine Safety,
https://www.cdc.gov/flu/protect/vaccine/vaccinesafety.htm [https://perma.cc/XLB9-XM6S]
(last updated Oct. 16, 2015) (noting that “[f]or more than 50 years, hundreds of millions of
Americans have safely received seasonal flu vaccines” and linking to flu vaccine safety
information).
254
Key Facts About Seasonal Flu Vaccine, supra note 132.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 925
A. New Vaccines
Scientists are constantly working to develop new vaccines. If there is an
outbreak of a serious disease for which a new vaccine has been developed, states
and employers—healthcare employers in particular—will need to have a framework
for determining: who should receive the vaccine, whether those persons should be
encouraged or required to receive the vaccine, and what exemptions, if any, should
be allowed. Public policy officials and private employers will have to balance the
risk to the employees from the vaccine against the risk that the disease poses to
employees, patients or customers, and the economic health of the business.
Government employers face the same constitutional concerns that apply to
current state influenza mandates and the smallpox vaccine policy approved by the
Court in Jacobson. Specifically, mandates will likely be upheld so long as the new
vaccine requirements are not arbitrary, unreasonable, or oppressive.
255
While that
bar is fairly low for vaccines that have been tested and proven safe and effective
over time, it is a higher hurdle when the safety and efficacy of the vaccine is not
clearly established or when the disease at issue is less catastrophic than smallpox or
less contagious than influenza. While private employers retain the relative freedom
to impose vaccination requirements on their employees—subject to Title VII, the
ADA, and union collective bargaining requirements—there are still pragmatic
economic concerns to be considered. The employer’s conclusions about whether to
impose a mandate will depend on the seriousness and contagiousness of the disease
for which the vaccine was developed, and on the data available regarding the
vaccine’s safety.
Zika and Ebola are two examples of highly contagious diseases which can have
debilitating or deadly complications.
256
Governments and private companies in
many countries are developing and testing vaccines for both viruses.
257
Employers’
responses to these vaccines will likely differ based not only on the perceived safety
of the vaccine, but also the risk to employees, patients, or customers if employees
are not vaccinated.
255
Jacobson v. Massachusetts, 197 U.S. 11, 29–28 (1905).
256
See discussion infra Part VI.A.1–2.
257
On March 31, 2017, the National Institute of Health (“NIH”) announced that
“[v]accinations have begun in a multi-site Phase 2/2b clinical trial testing an experimental
DNA vaccine designed to protect against disease caused by Zika infection.” Nat’l Inst. of
Health, Phase 2 Zika Vaccine Trial Begins in U.S., Central and South America (Mar. 31,
2017), https://www.nih.gov/news-events/news-releases/phase-2-zika-vaccine-trial-begins-
us-central-south-america [https://perma.cc/AQ3C-JUT2]; see also Ctrs. for Disease Control
& Prevention, Sierra Leone Trial to Introduce a Vaccine Against Ebola (STRIVE) Q&A,
https://www.cdc.gov/vhf/ebola/strive/qa.html [https://perma.cc/K6SP-GBRW] (last updated
Apr. 20, 2016) (discussing Ebola vaccine clinical trial co-sponsored by The College of
Medicine and Allied Health Sciences (“COMAHS”), University of Sierra Leone, the Sierra
Leone Ministry of Health and Sanitation (“MoHS”), and the U.S. Centers for Disease Control
and Prevention (“CDC”)).
926 UTAH LAW REVIEW [NO. 5
1. The Zika Virus
The Zika virus is spread primarily through mosquito bites, but authorities have
confirmed that it can be transmitted by a mother to her child during birth, sexual
contact between a man and his partner, and blood transfusions.
258
In addition, there
has been one confirmed case of transmission through sexual contact from a woman
to a man,
259
and at least one case in which officials cannot determine the method of
transmission.
260
Most people infected with the Zika virus suffer only mild symptoms
with no long-term complications.
261
However, Zika infection during pregnancy can
cause birth defects, including hearing loss, eye defects, impaired growth, severe
brain defects, and microcephaly.
262
With so many known methods of transmission,
the possibility of unknown methods of transmission, and severe possible
consequences for pregnant women and their babies, Zika presents a potential public
258
Ctrs. for Disease Control & Prevention, Zika Virus: Transmission & Risks,
http://www.cdc.gov/zika/transmission/index.html [https://perma.cc/GTY6-F6N3] (last
updated Apr. 28, 2017).
259
Ctrs. for Disease Control & Prevention, Suspected Female-to-Male Sexual
Transmission of Zika Virus—New York City, 2016, http://www.cdc.gov/mmwr/volumes/65/
wr/mm6528e2.htm?s_cid=mm6528e2_ [https://perma.cc/A8CZ-M6XP] (last updated July
22, 2016).
260
Clyde Hughes, Zika Utah Mystery: Sex-Less, Mosquito-Less Transmission,
NEWSMAX (July 19, 2016), http://www.newsmax.com/TheWire/zika-utah-
mystery/2016/07/19/Id/739321/ [https://perma.cc/96RM-YQJU]. County health officials
were investigating the case of a Utah man was the caregiver for a man with Zika who died.
The caregiver was later diagnosed with Zika, but he had not had sexual contact with anyone
who had Zika, had not traveled to a Zika-infected area, and there were no known Zika-
carrying mosquitos in Utah. Id.
261
Ctrs. for Disease Control & Prevention, Zika Virus: Symptoms, Testing, &
Treatment, http://www.cdc.gov/zika/symptoms/index.html [https://perma.cc/H3XG-9H2V]
(last updated June 21, 2016).
262
Ctrs. for Disease Control & Prevention, Zika Virus: Addressing the Growing Public
Health Threat (Feb. 24, 2016), http://www.hhs.gov/asl/testify/2016/02/t20160224c.html
[https://perma.cc/ARK7-J5N8] [hereinafter Zika Virus: Addressing the Threat]; Ctrs. for
Disease Control & Prevention, Zika Virus: Health Effects and Risks,
http://www.cdc.gov/zika/pregnancy/question-answers.html [https://perma.cc/45KJ-VQEY]
(last updated Aug. 9, 2016).
2017] EMPLOYER-MANDATED VACCINATION POLICIES 927
health disaster.
263
The potential consequences of an uncontrolled outbreak have
spurred research and testing of Zika vaccines,
264
but it will likely be several years
before a vaccine is widely available.
265
If a Zika vaccine is finally approved for use and is proven safe and effective,
then compulsory vaccination of all U.S. residents and visitors would undoubtedly be
an effective means of reducing or eliminating the risk to pregnant women and their
babies. However, it is highly unlikely that any state or the federal government would
take such an aggressive—and unprecedented—approach. While the states might
have authority to implement such a policy, it is not a certainty.
266
States have rarely
imposed such widespread mandates and would be justifiably reluctant to impose the
mandate for a Zika vaccine because the state would need to prove that the mandate
was reasonable and not arbitrary or oppressive.
267
Unlike influenza or pertussis—which can be transmitted through casual
contact—the only known methods for human-to-human transmission of Zika require
intimate contact.
268
While there is one case of Zika transmission without any
intimate contact,
269
that is probably not sufficient to justify mandatory vaccination
of every resident who might come in casual contact with someone infected with the
Zika virus. If public health authorities confirm that Zika can be transmitted through
casual contact, a stronger case could be made for state mandated vaccination.
270
263
Zika Virus: Addressing the Threat, supra note 262. The governor of Florida signed
an executive order declaring a public health emergency in counties where Zika had been
diagnosed. Gov. Rick Scott Directs Public Health Emergency in Four Counties for Zika
Virus, RICK SCOTT: 45TH GOVERNOR OF FLORIDA (Feb. 3, 2016),
http://www.flgov.com/2016/02/03/gov-rick-scott-directs-public-health-emergency-in-four-
counties-for-zika-virus/ [https://perma.cc/8ZKZ-7JFB].
264
Nat’l Inst. of Health, Zika Virus Vaccines (Apr. 25, 2017),
https://www.niaid.nih.gov/diseases-conditions/zika-vaccines [https://perma.cc/67Y9-36EL]
(listing and describing potential vaccines in various stages of testing).
265
Id. The National Institute of Allergy and Infectious Diseases (“NIAID”), part of the
National Institutes of Health (“NIH”), has begun
a multi-site Phase 2/2b clinical trial testing an experimental DNA vaccine. . . . The
two-part trial, called VRC 705, further evaluates the vaccine’s safety and ability
to stimulate an immune response in participants, and assesses the optimal dose for
administration. It also will attempt to determine if the vaccine can effectively
prevent disease caused by Zika infection.
Phase 2 Zika Vaccine, supra note 257. The study is not expected to be completed until 2019.
Id.
266
See Jacobson v. Massachusetts, 197 U.S. 11, 23–25 (1905) (recognizing the state’s
authority under its police powers to enact a compulsory smallpox vaccination law).
267
Id. at 28–29.
268
Zika Virus: Transmission & Risks, supra note 258.
269
Hughes, supra note 260.
270
The federal government could rely on its authority under the Commerce Clause if
the spread of Zika has a substantial effect on interstate commerce, but it is not clear that
928 UTAH LAW REVIEW [NO. 5
Otherwise, requiring every inhabitant of the state to be vaccinated against a disease
that produces only mild, temporary symptoms in the vast majority of the population
could easily be labeled unreasonable or oppressive. The more likely response is that
states or municipalities with diagnosed cases of Zika will strongly encourage
pregnant women, women who may become pregnant, and their partners to be
vaccinated. States may also require healthcare workers to be vaccinated, but only if
they can prove that the targeted employees pose an identifiable risk to patients
(which is unlikely based on the current evidence regarding transmission).
The issue is further complicated by the realization that far fewer cases of
microcephaly than expected were diagnosed among babies born after a Zika
outbreak in Brazil.
271
After a 2015 outbreak of Zika in Brazil, thousands of babies
were born with microcephaly.
272
After the 2016 outbreak, fewer than one hundred
cases of microcephaly were identified.
273
While the reason for the decrease is
unknown, some speculate that researchers overestimated the number of Zika
cases.
274
Another possibility is that Zika alone is not responsible for the birth defects;
instead they may result when another infection makes the Zika infection worse or
increases the risk of microcephaly.
275
Until that mystery is solved, vaccination
opponents could argue that vaccines may not be necessary to prevent birth defects
and, consequently, mandatory vaccination is unreasonable or arbitrary.
In the absence of a state-imposed requirement, healthcare facilities and other
employers will have to decide whether to impose a vaccine mandate on all or some
employees. In an at-will employment context, an employer can require vaccination
as a condition of continued employment.
276
However, employees with religious or
medical objections have a strong case for an exemption.
277
As noted above, the Zika
virus is not known to be transmitted through casual contact.
278
Since the risk of the
employee either contracting the virus from or transmitting the virus to another
employee is small, there is little risk that the employer will suffer an economic loss
sufficient evidence exists to support that claim. U.S. CONST. art. I, § 8.
271
Fewer Zika-Linked Birth Defects Than Expected, NPR (Mar. 30, 2017),
http://www.npr.org/2017/03/30/522015647/fewer-zika-linked-birth-defects-than-expected
[https://perma.cc/6SLJ-L5CH].
272
Id.
273
Id.
274
Id.
275
Id.
276
See, e.g., 18 NO. 9 N.D. EMP. L. LETTER 3 (2013) (“As a general rule, most North
Dakota employers may institute a mandatory vaccine policy and fire workers for not
complying with the policy. That’s because in North Dakota, most employment is ‘at will’
meaning most employees can be fired for any lawful reason at any time.”); 20 NO. 8 MISS.
EMP. L. LETTER 3 (2013) (“All Mississippi employers can technically require at-will
employees to get flu shots regardless of their industry.”).
277
See 18 NO. 9 N.D. EMP. L. LETTER 3 (2013) (explaining that antidiscrimination laws
may make vaccination policies unlawful); 20 NO. 8 MISS. EMP. L. LETTER 3 (2013) (“An
employee whose religious beliefs and practices prevent her from having vaccinations and
not taking medications cannot be forced to get a flu shot or fired for refusing the shot.”).
278
Zika Virus: Transmission & Risks, supra note 258.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 929
due to the employee’s illness. Likewise, there is little chance that the employee will
infect another employee, customer, or patient. Consequently, for most employers
there is little risk of legal liability if employees are not vaccinated against Zika and
it will be difficult for an employer to prove that religious or medical exemptions
impose an undue burden (under the strict ADA standard or more lenient Title VII
standard) on the employer.
The case for compulsory vaccination further weakens if the vaccine is effective
for most people who receive it. In that circumstance, women who are, or who may
get pregnant, can protect themselves most effectively by getting vaccinated and
ensuring that their sexual partners are vaccinated. Even if most people are
vaccinated, unvaccinated people will not be protected against transmission from
mosquitos to humans.
279
Thus, vaccination of individuals and eliminating the
mosquito populations would be the most effective controls.
280
While the Zika virus will not affect most employers (making mandatory
vaccination unnecessary), there are some employers who may have a strong
incentive to require vaccination if and when a vaccine becomes available.
281
The
CDC and OSHA have issued guidance for employees who are likely to come in
contact with mosquitos carrying the Zika virus, such as landscapers and others who
work outdoors.
282
If a Zika vaccine becomes available, an employer might have an
279
Id.
280
The HPV vaccine presents a similar situation. HPV itself is relatively harmless, but
increases the risk of some cancers, including cervical cancer. See Ctrs. for Disease Control
& Prevention, Human Papillomavirus (HPV), https://www.cdc.gov/hpv/?s_cid=PN-
NCIRD-Teen-AW-HPVQuestions-HPV_Prevention-3 [https://perma.cc/5CMN-GA4U]
(last updated Jan. 25, 2017) (describing the characteristics of the HPV vaccine). Thus, unlike
other vaccine-preventable diseases, vaccination is intended to prevent secondary effects and
not the disease vaccinated against. Id. Moreover, HPV is only effective before infection,
which occurs through sexual contact. Id. For these reasons, vaccination is most effective
before a person becomes sexually active. Id. Thus, the target group for vaccination is
adolescents and the desired result is a longer-term reduction in cancer rates. Id. Mandating
vaccination for adult healthcare workers, school employees, or any other employee would
not serve any significant public health purpose.
281
The CDC reports that mosquitos have begun transmitting the Zika virus in the United
States. Ctrs. for Disease Control & Prevention, Advice for People Living in or Traveling to
South Florida, http://www.cdc.gov/zika/intheus/florida-update.html [https://perma.cc/E5
SW-JDMG] (last updated June 20, 2017). On August 1, 2016, the Florida Department of
Health reported that mosquitos are transmitting the virus in a Miami neighborhood. Id. The
CDC advised pregnant women not to travel to the area. Id. This is the first time the CDC has
ever issued a travel advisory for a place within the continental United States. Sandee
LaMotte, CDC Issues Historic Travel Warning Over Miami Zika Outbreak, CNN (Aug. 3,
2016), http://www.cnn.com/2016/08/01/health/cdc-miami-florida-zika-travel-warning/
index.html [https://perma.cc/32GX-E75S].
282
Employer Guidance, supra note 72 (“Workers who are exposed on the job to
mosquitoes or the blood or other body fluids of infected individuals may be at risk for
occupationally acquired Zika virus infection.”).
930 UTAH LAW REVIEW [NO. 5
obligation to give employees access to the vaccine.
283
While pregnant women are at
greatest risk, an employee who may transmit the virus to a woman who is pregnant,
or who may become pregnant, should also be protected.
284
Consequently, OSHA
recommends reassigning any women who are pregnant, or who may become
pregnant, and any man who has a sexual partner who may become pregnant to indoor
work assignments.
285
Obviously, for an employer whose primary business requires employees to
work outside (e.g., construction, landscaping, road maintenance, park ranger,
lifeguard), that advice might require reassignment of many workers. In those
circumstances, requiring employees to get the Zika vaccine may be necessary to
protect employees and their sexual partners. Whether the risk rises to the level of a
“recognized hazard” that is “likely to cause death or serious physical harm to . . .
employees” under OSHA
286
is less clear if it is the employee’s sexual partner and
any child they conceive that is at risk of harm. The employer might offer free
vaccination out of concern for employees and their families and perhaps out of
concern for increased health care costs, but it is unclear if a mandate would be
warranted.
2. The Ebola Virus
Unlike the Zika virus, the Ebola virus is deadly
287
and can be transmitted
through contact with the bodily fluids of an infected person, including sweat, blood,
vomit, feces, and semen.
288
While this does not pose a high risk to the general public
283
OSHA requires employers to provide a workplace “free from recognized hazards
that are causing or are likely to cause death or serious physical harm to [their] employees.”
29 U.S.C. § 654 (2012).
284
Employer Guidance, supra note 72.
285
Id.
286
29 U.S.C. § 654 (2012).
287
Ebola has a death rate of up to 90%. World Health Org., Frequently Asked Questions
on Ebola Virus Disease, http://www.who.int/csr/disease/ebola/faq-ebola/en/
[https://perma.cc/95L5-5XSP] (last updated May 2017).
288
Ctrs. for Disease Control & Prevention, Why Ebola Is Not Likely to Become Airborne
(2015), http://www.cdc.gov/vhf/ebola/pdf/mutations.pdf?pdf=image [https://perma.cc/TT
7R-SG9X].
Ebola virus is spread through direct contact with the blood or body fluids
(including but not limited to feces, saliva, sweat, urine, vomit, and semen) of a
person who is sick with or has died from Ebola. The virus in blood and body fluids
can enter another person’s body through broken skin or unprotected mucous
membranes in, for example, the eyes, nose, or mouth.
Id. It may be possible for the virus to be transmitted through the semen of men who have
recovered from Ebola. Id. See also Ctrs. for Disease Control & Prevention, About Ebola
Virus Disease, http://www.cdc.gov/vhf/ebola/about.html [https://perma.cc/U2L3-Q7VP]
(last updated Feb. 18, 2016) (noting the possibility of transmission from contact with the
2017] EMPLOYER-MANDATED VACCINATION POLICIES 931
when there are isolated cases of Ebola, there is a serious risk in healthcare settings
because healthcare workers are likely to come in contact with the infected bodily
fluids of Ebola patients.
289
When a patient with Ebola was admitted to a hospital in
Dallas in the fall of 2014, two nurses who cared for him became infected.
290
In light
of that experience, it seems likely that healthcare facilities would strongly consider
requiring employees to take the vaccine if it becomes available.
291
There is also a risk to family members and others who care for Ebola patients,
since the symptoms are nonspecific and the patient may be initially misdiagnosed
with another nonfatal illness such as pneumonia, or general gastrointestinal
distress.
292
Those family members may then become infected and risk infecting
others. This widens the circle of potential victims, but not dramatically. If there are
only a few isolated cases, the disease can be contained fairly quickly without the
need for large-scale vaccination programs. However, the fact that the disease is often
fatal and the symptoms are perceived as gruesome may lead to higher demand for
the vaccine.
293
In 2014, when the Ebola outbreaks in Guinea, Sierra Leone, and Liberia were
at their peak, a single medical aid worker who worked with Doctors Without Borders
in Guinea developed Ebola after returning to New York.
294
Meanwhile, two
semen of a man who has recovered from Ebola). It is not known whether the virus can be
transmitted through the vaginal fluid from a woman with Ebola. Ctrs. for Disease Control &
Prevention, Ebola (Ebola Virus Disease): Transmission, http://www.cdc.gov/vhf/ebola/
transmission/index.html [https://perma.cc/WBN8-SAG9] (last updated July 22, 2015).
289
Id.
290
Id.; Manny Fernandez, 2nd Ebola Case in U.S. Stokes Fears of Health Care
Workers, N.Y. TIMES (Oct. 12, 2014), http://www.nytimes.com/2014/10/13/us/texas-health-
worker-tests-positive-for-ebola.html?_r=0 [https://perma.cc/2H2S-5A3V].
291
In fact, a newly developed vaccine was highly effective in clinical trials and is being
used in the Democratic Republic of Congo to try to halt an outbreak. Michaeleen Doucleff,
Powerful New Ebola Vaccine Heads to Congo to Help Stop Outbreak, NPR (May 30, 2017),
http://www.npr.org/sections/goatsandsoda/2017/05/30/530742469/powerful-new-ebola-
vaccine-heads-to-congo-to-help-stop-outbreak [https://perma.cc/8B43-AGEN].
292
Id.
293
See Josh Sanburn, The Psychology Behind Our Collective Ebola Freak-Out, TIME
(Oct. 20, 2014), http://time.com/3525666/ebola-psychology-fear-symptoms/ [https://perma.
cc/ZTT2-K3PX] (discussing the near-panicked reaction of many Americans to the small
number of Ebola cases in 2014).
Like the first cases of polio and HIV/AIDS, Ebola is something novel in the U.S.
It is uncommon, unknown, its foreign origins alone often leading to fearful
reactions. The fatality rate for those who do contract it is incredibly high, and the
often gruesome symptoms—including bleeding from the eyes and possible
bleeding from the ears, nose and rectum—provoke incredibly strong and often
instinctual responses in attempts to avoid it or contain it.
Id.
294
Ctrs. for Disease Control & Prevention, Cases of Ebola Diagnosed in the United
States, http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/united-states-imported-
932 UTAH LAW REVIEW [NO. 5
healthcare workers in Dallas tested positive for Ebola after treating Thomas Eric
Duncan, a Liberian man who developed Ebola symptoms after arriving in Dallas.
295
The nurses recovered, but the patient, Mr. Duncan, died eight days after the CDC
confirmed his Ebola diagnosis.
296
All of the people who came in contact with the
Ebola patients were monitored for twenty-one days. The only transmission of the
virus in the United States was from Mr. Duncan to the two Dallas healthcare
workers. Mr. Duncan’s was the only death from Ebola in the United States.
297
Nevertheless, in response to public fears and outcry, the governors of New
York, New Jersey, and Illinois instituted a twenty-one-day quarantine for all
healthcare workers returning from West Africa who had contact with Ebola
patients.
298
A nurse who was placed in quarantine in New Jersey—even though she
had tested negative for Ebola and did not have any symptoms—argued that the
quarantine violated her rights and experts debated the legality of the quarantines.
299
Public health officials criticized the quarantines as unnecessary in light of the strong
medical consensus that people are not contagious until they develop symptoms of
Ebola.
300
As months passed without any new infections, the tidal wave of fear
receded and the legal issues were left largely unresolved.
301
However, the extent of
the fear and the nearly unprecedented—and medically unnecessary—quarantines
imposed in response to those fears make vaccination mandates a real possibility.
The considerations for Ebola differ markedly from those raised by a Zika
vaccine. While the Zika virus can only be transmitted by humans through intimate
contact and only has serious consequences for a limited segment of the population,
the Ebola virus has potentially fatal consequences for anyone who is infected.
302
Moreover, while transmission requires contact with bodily fluids, healthcare
workers are at high risk for such contact and even people outside of the healthcare
setting may be at risk if an outbreak occurs and infected people are not quickly
diagnosed and isolated. Under these circumstances, healthcare facilities would have
good reason to require vaccination for all who may encounter patients during an
case.html [https://perma.cc/DSE5-4D6E] (last updated Dec. 16, 2014).
295
Id.
296
Id.
297
Id.
298
Justin Worland, Christie and Cuomo Announce Mandatory Ebola Quarantine, TIME
(Oct. 25, 2014), http://time.com/3537755/ebola-new-york-new-jersey/ [https://perma.cc/
76ZV-965N].
299
Jacob Gersham, Experts Debate Legality of New Jersey’s Ebola Quarantine Policy,
WALL ST. J. (Oct. 27, 2014), http://blogs.wsj.com/law/2014/10/27/experts-debate-the-
legality-of-new-jerseys-ebola-quarantine-policy/ [https://perma.cc/Y5CG-A7N2].
300
See FAQs on Ebola, supra note 287. People are not contagious until they develop
symptoms. Id.
301
Kaci Hicox, the nurse who was quarantined in New Jersey, filed suit in federal
district court in New Jersey; that case is still pending although the State of New Jersey has
filed a motion to dismiss. Hicox v. Christie, No. 2:15-cv-07647-KM-JBC, 2016 WL 211611
(D.N.J. Jan. 15, 2016).
302
FAQs on Ebola, supra note 287.
2017] EMPLOYER-MANDATED VACCINATION POLICIES 933
outbreak. Whether states should impose a mandate for all inhabitants or even all
healthcare workers in the absence of an outbreak or during an outbreak requires more
careful consideration.
303
States must still satisfy the courts that any mandatory vaccination policy is
reasonable and not arbitrary or oppressive.
304
In the absence of an outbreak, or more
than a few isolated cases of Ebola, a mandatory vaccine policy is suspect.
305
However, recent history has shown that the Ebola virus inspires fear and it may be
easier to persuade courts that a vaccine mandate is reasonable, even if public health
and policy officials deem it unnecessary.
306
A new vaccine also raises concerns about safety and effectiveness. Without
significant testing and a proven safety record, states are less likely to impose such a
mandate and courts are more likely to strike them down if the state chooses to do
so.
307
If there is an outbreak, a mandate may be perceived as more reasonable and
necessary to protect public health and safety.
308
However, the state will likely have
to convince opponents and the courts that any risks posed by the vaccine are justified
by the greater risks of widespread Ebola outbreaks.
States may be able to meet this burden if an Ebola vaccine currently being tested
continues to be as successful as it has been in early trials.
309
In early tests the vaccine
had only mild side effects (headaches and muscle pain)
310
and worked quickly
(within 4–5 days).
311
Approximately 4,000 individuals who had been exposed to the
303
For example, at the end of 2014 thirty-five hospitals in the United States had been
designated as Ebola treatment centers. Ctrs. for Disease Control & Prevention, 35 U.S.
Hospitals Designated as Ebola Treatment Centers (Dec. 2, 2014),
https://blogs.cdc.gov/safehealthcare/35-u-s-hospitals-designated-as-ebola-treatment-
centers/ [https://perma.cc/Q2QK-2X7A]. The administrators at those hospitals have a
stronger incentive to require all employees to be vaccinated. However, in the beginning of
an outbreak a person who has symptoms (and is therefore contagious) but has not been
diagnosed with Ebola may go into a hospital that is not one of those designated treatment
centers and expose healthcare workers. Similarly, a person may be exposed to Ebola in
another country and not even suspect that they are infected with Ebola. That single case may
not lead to an outbreak, but healthcare workers could still be exposed. That is precisely what
happened in Dallas in 2014.
304
See Jacobson v. Massachusetts, 197 U.S. 11, 28 (1905); see also discussion supra
Part II.A (discussing possible limits on states’ right to impose vaccine mandates).
305
See Jacobson, 197 U.S. at 28.
306
See Sanburn, supra note 293 (discussing the near-panicked reaction of many
Americans to the small number of Ebola cases in 2014).
307
See Jacobson, 197 U.S. at 28 (noting that courts may intervene if vaccination
mandate is arbitrary or unreasonable).
308
See id.
309
Doucleff, supra note 291.
310
Id.
311
Michaeleen Doucleff, First Ebola Vaccine Likely to Stop the Next Outbreak, NPR
(Dec. 22, 2016), http://www.npr.org/sections/goatsandsoda/2016/12/22/506600875/first-
ebola-vaccine-likely-to-stop-the-next-outbreak [https://perma.cc/X62B-HEKK].
934 UTAH LAW REVIEW [NO. 5
virus were given the vaccine; none of them developed the disease.
312
But the vaccine
has not completed the trials necessary to receive approval by the World Health
Organization or the U.S. Food and Drug Administration.
313
Approval is expected
sometime in 2018, but in the meantime it has been approved for use to fight an
outbreak in the Democratic Republic of Congo.
314
However, there are still
unanswered questions about the vaccine, including how long it is effective.
315
Such
questions cannot be answered until the vaccine has been studied for a longer period
of time, but it seems clear that short term effectiveness can be key to preventing an
outbreak.
316
Considering the vaccine’s effectiveness in preventing an outbreak, states—or
municipalities—would have a powerful incentive to make the vaccine mandatory
for at least some subset of the population. Healthcare workers are most likely to
encounter bodily fluids of patients infected with the Ebola virus and become infected
themselves. Considering this reality, hospitals have an obvious duty to their
employees and other patients to minimize the risk that the employees will contract
the virus or transmit it to others.
317
Providing protective gear and instruction on
proper use of the gear is imperative,
318
but may not be sufficient. Other nurses who
worked at the hospital where Mr. Duncan—the Dallas Ebola patient—was treated,
told reporters that the protective gear that they were given to use when treating Ebola
patients was inadequate, as was the training on how and when to use the
equipment.
319
They also claimed to have encountered resistance when trying to
follow isolation procedures.
320
Staff allegedly did not follow protocols for
processing specimens, leading to potential contamination of hospital systems.
321
The
hospital disputed those reports
322
and it may be that the nurses who were infected
312
Id.
313
Id.
314
Id.
315
Id.
316
Id. “What is clear is that the vaccine offers short-term protection during outbreaks.
And that’s exactly what’s needed to stop the virus from spreading and to keep small
outbreaks from getting out of control.”
317
Employers have a duty under OSHA to ensure that the workplace is safe, and OSHA
has published “recommendations for protecting workers whose work activities are conducted
in an environment that is known or reasonably suspected to be contaminated with Ebola virus
(e.g., due to contamination with blood or other potentially infectious material).” U.S. Dep’t
of Labor, Ebola: Control and Prevention, https://www.osha.gov/SLTC/ebola/control_
prevention.html [https://perma.cc/3FVW-FJQ5] (last visited June 16, 2017).
318
Id.
319
Dallas Nurses Accuse Hospital of Sloppy Ebola Protocols, ABC NEWS (Oct. 15,
2014), http://abcnews.go.com/Health/dallas-nurses-hospital-sloppy-ebola-protocols-union/
story?id=26205956 [https://perma.cc/XK6U-X7Y5].
320
Id.
321
Id.
322
Geoffrey Mohan, Dallas Hospital Shifts Blame to CDC on Ebola Protocols, L.A.
TIMES (Oct. 16, 2014), http://www.latimes.com/nation/la-na-dallas-nurses-hospital-
response-20141016-story.html [https://perma.cc/RBJ7-RGQC] (reporting that the hospital
2017] EMPLOYER-MANDATED VACCINATION POLICIES 935
while treating Mr. Duncan failed to follow the procedures put in place by the
hospital. Moreover, the CDC provided more guidance to hospitals after the Dallas
cases were diagnosed,
323
and state and federal authorities have changed their
approach for treating Ebola patients.
324
However, any system that requires perfect compliance 100% of the time is
bound to have failures. A vaccine that is highly effective with only a few minor
known side effects may be viewed as the only reasonably effective way to protect
employees and patients. If so, then the state may require vaccination for those most
likely to be infected.
One obvious and clear benefit to mandatory vaccination is that it protects
employees who encounter infected patients before they are diagnosed with Ebola. In
other words, before the employees are aware that they need to don protective gear
and implement the procedures necessary to prevent transmission of the virus. While
there have not been any new Ebola cases in the United States since October 2014,
new cases of Ebola have been diagnosed in the Democratic Republic of Congo as
late as April 2017.
325
If the disease exists anywhere in the world from which people
in the United States can travel, it is possible for new cases to be diagnosed here. But
until that happens, healthcare workers are not likely to consider that a patient
presenting with a fever, chills, and malaise may be infected with the Ebola virus.
326
denied allegations inadequate training and procedures put employees or patients at risk).
323
Ebola: Control and Prevention, supra note 317.
324
35 U.S. Hospitals Designated as Ebola Treatment Centers, supra note 303. The
CDC describes a tiered approach, with healthcare facilities falling into one of three
categories: (1) frontline healthcare facilities, (2) Ebola assessment hospitals, or (3) Ebola
treatment centers. Ctrs. for Disease Control & Prevention, Interim Guidance for U.S.
Hospital Preparedness for Patients Under Investigation (PUIs) or with Confirmed Ebola
Virus Disease (EVD): A Framework for a Tiered Approach,
http://www.cdc.gov/vhf/ebola/healthcare-us/preparing/hospitals.html [https://perma.cc/9S
35-A6VD] (last updated Aug. 25, 2015). Most acute care facilities will be frontline
healthcare facilities which should be able to identify and isolate patients who have been
exposed to Ebola and have signs or symptoms of the virus, but will likely transfer the patients
to Ebola assessment or treatment centers. Id. “Ebola assessment hospitals are facilities
prepared to receive and isolate PUIs and care for the patient until a diagnosis of EVD can be
confirmed or ruled out and until discharge or transfer is completed.” Id. “Ebola treatment
centers are facilities that plan to care for and manage a patient with confirmed EVD for the
duration of the patient’s illness.” Id. As of February 18, 2015, the CDC identified were fifty-
five hospitals with Ebola treatment centers in eighteen states and the District of Columbia.
Id.
325
Doucleff, supra note 291. Other West African nations have also seen outbreaks in
2015-2016. World Health Org., End of Ebola transmission in Guinea (June 1, 2016),
https://www.aho.afro.who.int/en/news/5301/end-ebola-transmission-guinea
[https://perma.cc/XS35-M7SW]. The World Health Organization declared that the Republic
of Guinea was Ebola-free on June 1, 2016 but it had been declared Ebola-free in December
2015 only to have new cases diagnosed in March 2016. Id.
326
Ctrs. for Disease Control & Prevention, Ebola Virus Disease (EVD) Information for
Clinicians in U.S. Healthcare Settings, http://www.cdc.gov/vhf/ebola/healthcare-
936 UTAH LAW REVIEW [NO. 5
An Ebola vaccine would protect against infection and prevent transmission when
healthcare workers are least likely to protect themselves.
3. Old Vaccines for New Outbreaks
With respect to diseases for which vaccines have been available and in use for
many years, there is likely to be sufficient information for employers—and courts—
to determine whether the effectiveness of the vaccine and risks to patients justify
mandatory vaccination over religious or medical objections. One example is the
smallpox vaccine. The attacks of September 11, 2001 prompted federal officials to
consider compulsory smallpox vaccination regulations for certain segments of the
population, particularly those serving in the armed forces.
327
As late as 2004, the smallpox vaccine was known to have potentially fatal side
effects, particularly in those with compromised immune systems.
328
Moreover, the
vaccination process requires infecting the patient with the live virus into an open
wound that takes weeks to heal.
329
During that time, the vaccinated patient risks
transmitting the virus to others.
330
Given that the risk of an outbreak was thought to
be small, it is not surprising that when offered the vaccine, most healthcare
employers declined and only a small percentage of the targeted population was
vaccinated.
331
Government officials did not attempt to persuade or pressure civilians
to be vaccinated in greater numbers, but scholars have used that experience to
theorize more effective ways for the government to approach large-scale vaccination
us/preparing/clinicians.html [https://perma.cc/T8XJ-F8XP] (last updated May 24, 2016).
Initial signs and symptoms are nonspecific and may include elevated body
temperature or subjective fever, chills, myalgias, and malaise. Because of these
nonspecific symptoms, particularly early in the course of the disease, EVD often
can be confused with other more common infectious diseases such as malaria,
typhoid fever, meningococcemia, and other bacterial infections (for example,
pneumonia).
Id.
327
See Edward P. Richards, Katherine C. Rathbun & Jay Gold, The Smallpox
Vaccination Campaign of 2003: Why Did It Fail and What Are the Lessons for Bioterrorism
Preparedness?, 64 LA. L. REV. 851, 894 (2004) (describing and analyzing the smallpox
vaccination program instituted after the September 11, 2001 terrorist attacks).
328
Id. at 865–67 (discussing the contemporary smallpox vaccine and its complications).
329
Id.
330
Id.
331
Id. at 853 (explaining that the civilian smallpox vaccination plan failed in large part
because healthcare employers and institutions decided not to participate).
2017] EMPLOYER-MANDATED VACCINATION POLICIES 937
programs.
332
Without an identifiable and substantial risk of a smallpox outbreak, a
state mandatory vaccination policy would likely be struck down as unreasonable and
unconstitutional.
Private employers also need to be concerned about the potential impact of
smallpox vaccination and potential liability flowing from transmission of the disease
by the vaccinated employees to other employees and customers.
333
The vaccinated
employee could suffer side effects that result in an inability to work or illness
requiring treatment, or both. If the vaccination poses a risk to people other than the
vaccinated person, the employer may need to insist that the employee stay home or
adopt procedures to reduce or eliminate the risk of transmission to others. In these
cases, the employee may expect or demand compensation for lost work, medical
treatment, and indemnity if the employee infects others and faces liability. In the
absence of a specific, credible threat, employers have no basis to require smallpox
vaccination.
A much stronger case can be made for measles vaccination (“MMR”).
334
The
measles virus is highly contagious and is potentially—though not typically—fatal.
However, unlike the smallpox vaccine, the MMR vaccine carries a very low risk of
side effects.
335
Recent measles outbreaks may motivate some employers to consider
requiring employees to prove that they have been vaccinated against measles or
otherwise have developed immunity, at least during an outbreak.
336
Any such policy
would be for the benefit of the employer—to prevent having a large number of
employees out sick at the same time—rather than to protect the employees, since
employees can protect themselves simply by choosing to get vaccinated. While
employers have not yet taken this step, even after several measles outbreaks, if the
outbreaks increase in number or scope, and the risk of serious financial loss is great
enough, employers may be willing to break new ground and impose a mandate.
332
See id. The authors advocated preparing for the possibility that smallpox could be
used as an agent of bioterrorism by immunizing specific groups of people to make them
immune to smallpox. Id. at 904. Moreover, large quantities of the vaccine should be
stockpiled securely in various locales; enough people should be trained to administer the
vaccine that large numbers of people can be vaccinated quickly in the event of an outbreak.
Id. at 901–04.
333
Id. at 866 (noting that the smallpox virus can be spread to others while the
vaccination site heals).
334
Ctrs. for Disease Control & Prevention, Complications of Measles,
https://www.cdc.gov/measles/about/complications.html [https://perma.cc/FM6C-TP9U]
(last updated Mar. 3, 2017). Common side effects include ear infections which may lead to
hearing loss. Id. More serious side effects include pneumonia and encephalitis. Id. “For every
1,000 children who get measles, one or two will die from it.” Id.
335
Measles, Mumps, and Rubella (MMR) Vaccine Safety, supra note 220 (noting a
small risk of febrile seizures with no long-term effects and extremely rare cases of more
serious allergic reactions to the MMR vaccine).
336
During the Disney measles outbreak, the Disney Corporation required employees to
prove that they had been vaccinated before allowing them to return to work. See discussion
supra Part III.A.1.
938 UTAH LAW REVIEW [NO. 5
VII. CONCLUSION
Vaccines save lives. For this reason, states have ample incentive to encourage
people of all ages to get vaccinated. However, states generally only require limited
vaccinations for healthcare workers and schoolchildren. That leaves individual
healthcare employers with the decision of whether to require other vaccinations, and
nonhealthcare employers to decide whether and under what conditions to require
any vaccinations for their employees. While most employers can legally require
employees to get any vaccinations that the employer desires (with possible
exemptions for religious and medical objections), there is rarely a compelling reason
for such a mandate.
Yet, employers cannot afford to dismiss the possibility of a compulsory
vaccination policy. During an outbreak of a highly contagious disease, or when their
employees are likely to contract and transmit vaccine-preventable diseases to other
employees, vulnerable patients, or customers, a targeted mandate may be necessary
to avoid liability or serious business losses. Identifying when the employer has a
duty to employees or customers and determining whether a vaccine mandate is
necessary to fulfill that duty requires an understanding of the risks posed by the
disease and those posed by the vaccine. Only by carefully weighing the risks can an
employer decide whether a mandate makes sense legally and financially.
