Although dentists, dental professionals and other health care workers in California are, as of last September, no longer required to submit either proof of COVID-19 vaccination or a weekly or biweekly negative COVID-19 test result to enter the workplace, employers still can choose to mandate vaccination for their workers — with some potential exemptions. A recent California appeals court decision provides additional guidance for employers who choose to do so.
Mandatory vaccination policies generally permitted by federal and state law
Both the U.S. Equal Employment Opportunity Commission and the California Civil Rights Department have already said employers can continue to implement a mandatory vaccination program for their employees as part of their health and safety program to combat COVID-19 in the workplace.
But the federal Americans with Disabilities Act and state law exempt some employees from complying with a mandatory vaccination policy if they have a qualifying disability, medical condition or sincerely held religious belief that prevents them from safely receiving the vaccine. Furthermore, employers must provide reasonable accommodations for employees who refuse to receive the vaccine, such as allowing the employee to take a leave of absence. And health complications experienced after receiving the vaccine could be considered a workplace injury under workers’ compensation.
Requiring employees to get vaccinated has therefore always had the potential to result in legal implications for the employer, and CDA’s employment and regulatory compliance analysts generally have advised member-practice owners to focus on encouraging, rather than mandating, staff to get vaccinated.
Now, an appeals court has ruled in favor of an employer in a vaccination-related termination case, concluding that the employee did not provide sufficient evidence that she had a disability that would legally exempt her from the employer’s mandatory vaccination policy.
The ruling is significant, overall positive development for employers and suggests courts may rule similarly in future cases.
Court rules employer did not discriminate by terminating employee for refusing vaccine
Cedar Sinai-Medical Center employee Deanna Hodges sued the Los Angeles hospital for disability discrimination and other claims under the Fair Employment and Housing Act after the hospital fired her for refusing to get the influenza vaccine in compliance with the hospital’s policy.
When the lower court granted the hospital’s motion to dismiss the claim, Hodges appealed.
In Hodges v. Cedars-Sinai Medical Center, the California appellate court concluded that the lower court was correct in dismissing the claim, and that the Los Angeles hospital did not discriminate against Hodges when it fired her.
The court considered a note Hodges’s doctor submitted recommending she be exempted from the hospital's vaccine requirement because of her history of cancer and related allergies, among other reasons. But the court concluded none of the reasons was a medically recognized contraindication to getting the vaccine.
“The employee offered no evidence that the possible side effects of the vaccine would amount to a disability,” the professional HR membership association SHRM reported in a recent news update.
Additionally, the doctor never claimed Hodges was specifically allergic to or had experienced an adverse reaction to the flu vaccine. The court found that even a moderate allergic reaction to the vaccine would not prevent the employee from performing her job and other major life activities.
SHRM reported that even if the plaintiff had shown that she had a disability, the hospital gave a legitimate, nondiscriminatory reason for her termination. “The hospital presented evidence that its mandatory vaccination policy was a product of concern about patient safety and guidance from the CDC, which recommended that all employees at health care facilities, regardless of role or involvement in patient care, receive the flu vaccine.”
National labor and employment firm Fisher Phillips wrote of the appeals court decision, “This case demonstrates that reliance on CDC guidance can help an employer ensure the enforceability of its policy, so long as it is applied consistently and objectively. At a minimum, employers can expect that courts will defer to the CDC on matters of medically recognized contraindications for getting vaccinated.”
CDA offers sample mandatory vaccination, booster policies
Dental practice owners can implement or continue to enforce a mandatory vaccination policy with the exemption, privacy and accommodation considerations already noted and further outlined in CDA’s resource “Employer Vaccine and Booster Polices and Best Practices.”
Use CDA’s sample mandatory vaccination policy (with instructions) and booster policy. CDA’s resource library contains hundreds of resources. Most are available to members only, but COVID-19 resources are open to all California dentists.