Can employees be forced to be vaccinated?

I am being asked to produce documentation of immunization for measles, mumps and rubella for a medical/surgical nursing job. My nurse colleagues and I have never heard of this required for employment to any hospital. Does an employer have a right to force an individual into getting an MMR vaccination for the sole purpose of employment? Look forward to your comments. Thanks.

Posted 12-12-2002

Ann Kiernan replies:

If you were not a health care worker, the answer would certainly be NO! But since the nature of nursing involves occupational exposure to infectious diseases, the employer might be able to ask about your immunization status and perhaps even to require re-vaccination if you do not have proof of current protection.

Under the Americans with Disabilities Act (ADA), after an applicant is given a conditional job offer, but before s/he starts work, an employer may conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. But, after employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. Also, an employer may require employees to submit to medical examinations that are required by another federal law or regulation. 29 C.F.R. 1630.15(e)(1998)

So, is immunity to measles, mumps and rubella either “job-related and consistent with business necessity” or required by other law? Maybe, according to our research at the Centers for Disease Control.

The CDC report strongly recommends that health care workers be immunized for hepatitis B, influenza, measles, mumps, rubella, varicella zoter, and tetanus.

Another federal agency, OSHA, says in its Technical Manual governing hospitals that: “Vaccination for rubella, measles, mumps, and influenza is recommended, especially for women of child-bearing age.”

It is not directly relevant to your situation, but a recent federal appeals decision upheld a Navy captain’s right to insist that both military and civilian personnel on his ship be vaccinated for anthrax when they were entering ” high threat areas and contiguous waters”. Mazares v. Dep’t of the Navy, 302 F.3d 1382 (Fed. Cir. 2002)

Thanks for raising such an interesting issue. We have only scratched the surface here. This would be a good question to pose to your state nursing society or professional board for a definitive answer.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:34+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.