Businesses across many industries, such as gyms, children's programs, and even standard retail establishments, are discovering they have to balance certain pressures such as notifying/protecting their customers and/or employees from possible health threats against unnecessarily sparking panic. Combined with the Ebola scare last fall and another nasty flu season, the recent measles outbreak making headlines at a certain amusement park in California has only caused increased concern for businesses and their customers/employees.
As the disease spreads to the southeast with Georgia's first confirmed case of measles in February 2015, public concern will only escalate. This concern has forced businesses to confront unexpected issues, including whether they might request customers to be immunized before receiving services or whether employees exposed to the disease, or even those without proof of immunization, may be required to stay home.
Although specific and technical legal requirements for collecting and handling sensitive information (e.g., state and federal privacy and confidentiality laws and regulations such as the Health Insurance Portability and Accountability Act of 1996 ("HIPAA")) may be applicable depending on the particular industry, generally a business can require its customers, clients or employees, as applicable, to provide proof of immunization. But should immunization proof necessarily be required by a business? [See Footnote below]
From Customers, Clients and Students
This is where things get tricky. Even without legally mandated requirements, a business may choose to ask for and require proof of immunization from all customers/students. If proof is not provided by any one of them, however, the business would have to remove the non-compliant customer or discharge the student from the program mid-stream, including potentially reimbursing fees.
Alternatively, the business may choose not to ask for or require proof of immunization and then risk losing concerned customers/students. Such business could consider offering refunds for missed services to any concerned customers/students who stay away because they are anxious that other customers/students may not have been immunized. If a customer/student does contract measles (or similar disease), it may be reasonable to require the customer/student to stay home until they are healthy and no longer contagious to avoid its spread at the business.
From Employees
Those employers who are not under mandatory immunization requirements may choose to require employee vaccination but face potential risks, such as violating privacy and discrimination laws. In certain industries, however, these are necessary risks. For example, in the wake of the measles outbreak at an Illinois location in February 2015, KinderCare, the national daycare provider, announced a policy change that requires vaccination among all staff who work with children under the age of 15 months. Employers should consistently implement any mandatory immunization policy, while also providing exemptions for medical or religious reasons, in order to protect against any discrimination claims or claimed civil rights violations.
Considerations in Creating a Mandatory Immunization Policy
If a business intends to develop a mandatory vaccination policy or program, it should consider all legal implications before implementing such policy/program. The key to the success of any policy is consistent implementation or the business becomes vulnerable to claims of discrimination. The policy should be set forth clearly (e.g., could be included in the customer enrollment documentation, if applicable). Proper consent forms should also be obtained to authorize access to the relevant immunization records.
In short, not every business will approach the recent immunization concerns in the same way -- businesses should be proactive in considering their specific needs and planning accordingly. They should consult legal counsel for further guidance and any applicable state and federal laws and regulations to avoid potential liability.
[Footnote: Most state laws impose mandatory immunization requirements on certain organizations. For example, many states require children attending school (Kindergarten - 12th grade) or a licensed childcare facility (including affiliated after-school programs) to be immunized, though certain exemptions exist. Additionally, state law may impose immunization requirements for healthcare workers, medical patients, inmates and/or the developmentally disabled.]
