Employer-Mandated Vaccination Policies: Different Employers, New Vaccines, and Hidden Risks

Although debates about access to healthcare and healthcare financing have been in the headlines for years, attention has only sporadically been 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, and 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 non-healthcare 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. Similarly, 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 anti-discrimination 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 in the event of an outbreak that will have a significant impact on the employer’s business or the well-being of employees or customers, the benefits of a vaccine mandate may outweigh the risks