Yes, Employers Can Fire Staff for Under-Vaccination

Healthcare providers may condition staff employment upon certain vaccinations

lady justice

Three legal cases during 2018 have helped clarify an employment question - can employers require employees to be vaccinated. 

On December 7, 2018, the U.S. Eighth Circuit Court of Appeals held that an employee who was terminated for refusing to take a rubella vaccine was not discriminated or retaliated against. 

This decision comes as welcome news to employers that provide health care-related services and confirms that healthcare providers may condition employment upon taking certain vaccinations, so long as the vaccination is job-related and consistent with business necessity.   

This ruling is based upon the Americans with Disabilities Act, as amended (“ADA”). 

According to reporting by Cary Burke, Associate, National Law Review, in May 2013, Janet Hustvet, who worked as an Independent Living Skills Specialist, completed a health assessment, during which she stated she did not know whether she was immunized for rubella.   

Subsequent testing confirmed she was not.   

Her employer -- Allina Health Systems -- then told Hustvet she would need to take one dose of the Measles, Mumps, Rubella vaccine (“MMR vaccine”).   

Hustvet stated to an Allina representative that she was concerned about the MMR vaccine because she had previously had a severe case of mumps and had “many allergies and chemical sensitivities.”   

Later, Hustvet refused to take the MMR vaccine and was terminated for failure to comply with Allina’s immunity requirements.   

Hustvet then sued Allina, alleging discrimination, unlawful inquiry, and retaliation claims under the ADA and Minnesota state law.  The district court granted Allina’s motion for summary judgment, and Hustvet appealed. 

Allina sought to ensure their patient-care providers would not pose a risk of spreading certain diseases – such as rubella – to its client base. 

Thus, the inquiry was job-related and consistent with business necessity. 

The court then did away with Hustvet’s discrimination claim based upon failure to accommodate because Hustvet was not disabled and, thus, she could not state a prima facie case of disability discrimination. 

Finally, the court affirmed the district court’s grant of summary judgment regarding Hustvet’s retaliation claim. 

In pertinent part, the court reasoned that Hustvet could not show that Allina’s proffered reason for terminating her employment – her refusal to take an MMR vaccine – was a pretext for discrimination.   

The record evidence demonstrated that Allina terminated Hustvet’s employment because her job required her to work with potentially vulnerable patient populations, and she refused to become immunized to rubella, an infectious disease. 

Employers with questions regarding implementing or enforcing such policies would do well to consult with able counsel, said Cary Burke, [email protected], 404.253.6062, www.polsinelli.com.

For additional information, see Hustvet v. Allina Health System, Case No. 17-2963

Previously, during January 2018, the Third Circuit Court of Appeals ruling clarified how healthcare employees can claim a religious exemption to avoid getting the flu vaccine. 

The National Law Review published an article from Nathaniel M. Glasser, with Epstein Becker Green, suggesting that employers should be mindful not to categorically deny all requests for religious exemptions based on anti-vaccination beliefs. Mr. Glasser can be reached at [email protected] or 202-861-1863.

In this case, the Court concluded that Fallon’s belief that “the flu vaccine may do more harm than good” amounted to nothing more than a concern about the health effects of the vaccine. 

Additionally, during January 2018, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced a new proposed rule to enforce 25 existing statutory conscience protections for Americans involved in HHS-funded programs. 

This proposed rule would provide protections for healthcare workers who refuse to participate in services that run counter to their religious beliefs or moral convictions.