Some employers, especially in the health care industry, have started requiring their employees to get annual flu shots. Even though the flu vaccine has a lot of benefits both for the patient and the population at large, some people can experience serious side effects
. These range from fever and nausea to allergic reactions and, in rare cases, serious conditions like Guillain-Barré syndrome
. An employer mandate can feel unfair for employees who are concerned about the risks of vaccines or object to them on religious grounds. But if an employer terminates an employee for refusing to comply with a mandatory vaccine policy, does the employee have legal recourse?
At-will employment gives employers leeway
Nevada is an at-will employment state, which means that an employer ordinarily can terminate an employee with or without cause. There are exceptions to this general rule for employees who work under a contract, such as collective bargaining agreements, where the terms of the contract will override the default, at-will rule. But absent an arrangement that spells out when and how an employee can be fired, an employer is free to terminate an employee at any time.
Failure to comply with a condition of employment, such as a requirement that all employees get the flu vaccine, may give an employer cause for firing an employee. For the employee, being fired for cause could have consequences beyond just losing the job, such as affecting eligibility for retirement benefits. As a consequence, an employee who objects to a mandatory vaccine may be placed in a difficult position.
Responses to a mandatory flu vaccine
Employees who object to their employers’ mandatory vaccine policies have started taking the issue to the courts, either directly or with the help of the U.S. Equal Employment Opportunity Commission (EEOC). These cases have raised several potentially strong legal arguments in favor of employee choice:
- Disability. An employee who can show that a vaccine may have negative side effects related to an existing disability may have a good argument that the employer must grant a reasonable accommodation under the Americans with Disabilities Act (ADA).
- Pregnancy. A pregnant employee may be able to refuse a vaccine on grounds that other employees have been granted exceptions for other medical reasons. The federal Pregnancy Discrimination Act prohibits unequal treatment of pregnant employees on the basis of their pregnancy. Pregnant employees may also qualify for disabilities under the ADA in some circumstances, such as if they are suffering from gestational diabetes.
- Religious convictions. An employee with sincerely-held religious beliefs that prohibit the use of vaccines may be entitled to reasonable accommodations under Title VII of the Civil Rights Act of 1964, so long as the accommodation does not present an undue hardship to the employer. Note that Title VII does not apply to purely secular objections, such as those based on particular scientific studies or non-religious personal convictions. See Fallon v. Mercy Catholic Med. Ctr., 977 F.3d 487 (3rd Cir. 2017).
- Privacy. Under the federal Health Insurance Portability and Accountability Act (HIPAA) most types of health care provider are required to keep confidential the health records of their patients. Employers are only entitled to such information in limited circumstances. In many situations, the administration of a flu vaccine in the workplace, such as by a third-party contractor, will fall outside HIPAA, but under the right circumstances a health care provider advising an employer that an employee refused a vaccine could violate the employee’s HIPAA rights.
GGRM serves the Las Vegas community
For over 45 years the attorneys at Greenman Goldberg Raby Martinez have helped clients in the Las Vegas area protect their legal rights and recover compensation for injuries they have suffered. If you have lost your job for refusing to comply with a mandatory vaccination policy and would like to understand your legal options, call us today for a free attorney consultation at 702-388-4476, or request a call through our website