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The overwhelming weight of authority confirms that vaccines save lives. But vaccine opponents have been vocal and influential, and even some who work in healthcare facilities distrust vaccines. The tension between employees who distrust vaccines and employers who want to encourage or require vaccination has led many healthcare policy and legal scholars to explore the legal and ethical implications of compulsory vaccine policies. While many scholars have made important contributions to this discussion, most of the legal scholarship has focused on a single vaccine for a limited class of employees: the influenza (flu) vaccine for healthcare workers. Moreover, the focus of the literature is on healthcare employers’ potential liability if they require employees to get the flu vaccine. However, new diseases threaten our communities constantly, and as new vaccines are developed (such as the Zika and Ebola vaccines currently being developed and tested) healthcare and non-healthcare employers must reconsider imposing mandatory vaccination policies. This Article considers the factors those employers should consider when deciding whether to require employees to be vaccinated against diseases other than the flu. Similarly, most arguments in support of or in opposition to flu vaccination policies do not address whether healthcare or other employers may face liability if they fail to require employees to be vaccinated. The question is critically important because mandating vaccines is almost unheard-of outside of the healthcare context. Many lawyers and government agencies advise employers to encourage but not mandate employee vaccination, and the only risks identified are the risks of being sued for imposing a mandate in violation of anti-discrimination statutes. The unstated premise is that there is no liability if the employer chooses not to require vaccination. This Article considers the accuracy of that premise and concludes that employers whose employees are likely to transmit diseases to other employees, vulnerable clients, or patients may face liability if they do not to require their employees to be vaccinated.

Employer-Mandated Vaccination Policies: Different Employers, New Vaccines and Hidden Risks