Georgians have learned that a child with measles has been admitted to Children’s Healthcare of Atlanta, a provider well-equipped to handle the case. Less clear is whether any unvaccinated persons were exposed as the child traveled through Georgia. Yet even if no additional cases are reported in this state, employers already are being bombarded with questions from concerned employees.
Employers might as well accept that infectious diseases will be an annual issue. In 2014, we dealt with Ebola and influenza. The current measles outbreak has introduced new concerns because the virus is hardier and more easily transmitted than the typical influenza. It can survive for two hours in the air or on surfaces. Employees may be infectious four days before and after presenting symptoms.
Each infectious disease outbreak prompts similar questions from employers: Can I require employees to get a vaccination? What are my responsibilities if an employee or customer exposes my employees? Can I tell an employee possibly exposed to an infectious disease to stay home?
How should Georgia employers respond to these questions? Are they even the right questions? Perhaps employers should first ask, “What can we do to prevent this illness before it generates personnel headaches?”
Society cannot yet eliminate all occasions of HIV, antibiotic-resistant staph, hepatitis or even TB, but we can eliminate almost all measles from the U.S. Employers have a vital role in this community effort, but they must address an uncomfortable area: employee personal responsibility. For legal and philosophical reasons, outside health care, employers are reluctant to require or even encourage vaccinations.
There are legal reasons employers in most settings should not mandate vaccinations, but there are few legal arguments against employers using wellness efforts and their internal communications programs to emphasize employees’ responsibility to co-workers and the public to obtain mandated vaccinations for themselves and their children.
Employers should face anti-vaccination claims head-on by pointing out that all reliable research shows that, as in the case of any treatment, there are some risks with any vaccination, but they are minimal compared to the benefits. As long as the employer is repeating the established public health message, how can an employee prove the employer’s efforts violated the law?
Courts are loath to determine the validity of, or to override, religious objections. Outside of health care, it’s unclear whether an employer could overcome Americans with Disabilities Act, religious and other employee legal challenges to mandatory employee vaccinations. One would have to clearly show vaccinations were necessary to perform the essential functions of the job, or that not having a vaccination presented a direct threat to safety.
Employers must approach these decisions on a job-by-job basis. They should follow public health guidance in making decisions, including whether to ask an employee to stay home after an exposure.
Similarly, because of the easily transmittable nature of measles, public health officials are not recommending that employees be told the name of an infected coworker. That’s because there is little more an employee can do than to be alert to symptoms, so nothing is gained by identifying an individual. However, employers should understand that advising coworkers of a possible exposure, and the symptoms they should be aware of, raises few, if any, confidentiality concerns.
The best advice for companies is to remain calm and show concern for employees. Advise them you’re monitoring the situation. Regularly share useful public health advice and updates. Try to address employee concerns through education, before they become legal problems.
Howard Mavity is a partner at the Atlanta-based national labor and employment law firm Fisher & Phillips LLP.
