Mandatory Vaccine Requirements May Not Be Mandatory (as a Condition of Employment) After All
by David B. Walston, Partner
Many health care providers require clinical staff to receive vaccines as a condition of
employment. If you do so, you need to be aware of a recent case out of Pennsylvania held that a hospital that refused to consider alternatives to required vaccinations MAY HAVE violated the federal Americans with Disabilities Act (“the ADA”). The case involves a registered nurse who refused to receive the TDAP vaccine. Here is a summary of the facts alleged by the nurse:
Aleka Ruggiero, R.N., worked for Mount Nittany Medical Center. Ruggiero suffers from severe anxiety and eosinophilic esophagitis. These conditions did not limit her ability to perform her job duties for MNMC.
MNMC required all clinical employees to receive the TDAP vaccine. The hospital provided a telephone number for employees to call with questions about the vaccine. Ruggiero did not receive the vaccine by the established deadline. When MNMC notified Ruggiero that she had missed the deadline, she provided a note from Dr. Dib, her personal physician:
“The above named patient is medically exempt from receiving TDAP immunization for medical concerns.”
MNMC provided Ruggiero’s physician with information from the vaccine manufacturer and asked the physician to identify which of the eight contraindications, warnings, or
precautions listed by the manufacturer prevented Ruggiero from receiving the vaccine. The physician replied:
Aleka Ruggiero is medically exempt from receiving the TDAP immunization due to severe anxiety with some side effects she read with this injection, especially with her history of having many food allergies, environmental allergy and eosinophilic esophagitis. Patient being terrified, I feel the risk of this TDAP injection outweighs the benefits. [Ruggiero] understands the risks of not getting this immunization.
The physician did not state that Ruggiero suffered from any of the contraindications, warnings, or precautions listed by the vaccine’s manufacturer.
The hospital advised Ruggiero “the documentation provided by Dr. Dib does not meet the definition of medical contraindication as detailed in the manufacturer’s vaccine literature and thus TDAP immunization is required.”
According to Ruggiero, MNMC allowed clinical staff to wear masks instead of getting the flu vaccine. She claimed that she requested to wear a mask as an alternative to the TDAP vaccine but MNMC denied the request.
Ruggiero did not receive the vaccine by the newly imposed deadline. MNMC removed Ruggiero from work and terminated her employment a week later.
MNMC sought to have the case dismissed arguing that even if Ruggiero’s allegations were true, her refusal was not protected by the ADA. The court held Ruggiero’s allegations did bring her under the coverage of the ADA, and that MNMC’s refusal to consider alternatives to the TDAP vaccine could be found to be a violation of the ADA. The court allowed the case to proceed.
It is important to note the Court did not rule that MNMC had violated the ADA. The Court did not rule that medical care providers may not require clinical staff to receive vaccines. The Court ruled that Ruggiero’s allegations created a dispute that MNMC may not have adequately engaged in the “interactive” process required by the ADA – discussion and consideration of possible alternatives to the vaccine requirement in the face of Ruggiero’s objection, apparently as it had done with the required flu vaccine.
THE LESSON: Absent requirements of federal or state regulations, a health care
provider’s “mandatory” vaccination requirements may have to be flexible. If an employee
objects to a vaccination requirement, the health care provider may not simply dismiss or
ignore the objection. Health care providers must be open to considering alternatives that
will accommodate the employee yet still provide protection for the health and safety of
patients.