If you are not living under a rock, you have heard by now that there is a large measles outbreak in the United States that can be linked back to some unvaccinated visitors to Disneyland. Lots of people are angry and concerned and I’ve gotten lots of questions about this outbreak, including what Disneyland can and should be doing to prevent outbreaks like this in the future. After all, a massively popular amusement park, visited by folks from the world over all packed into a relatively small space, is a pretty great place for disease to spread. Among those sickened by measles, were at least five Disneyland employees.
In response to this, Disneyland asked all employees who came into contact with the five sick employees to submit “vaccination records or submit to a blood test that shows they have built immunity to the disease.” And any employees who could not confirm their immunity status were asked to stay home on paid leave. So wait, if Mickey Mouse can’t confirm his immunity, does he have to stay home from work? Can Disneyland even do that? What about Mickey’s rights?
To answer this, I brought in a colleague of mine who is not only a professor of law at UC Hastings, but who has also authored numerous articles on issues surrounding vaccines and the law. Without further ado, I present Professor Dorit Rubinstein Reiss’ analysis of Disneyland, measles and employee vaccines.
The first issue is whether Disneyland can even make the initial demand of its employees. The short answer is yes. Employment in the United States, including California, is at will (the exception is Montana) which means it can be terminated upon notice. Even employment for a specified term may be terminated by the employer, “in case of any willful breach of duty by the employee in the course of his employment.” Arguably, violation of a health and safety requirement – such as being vaccinated against measles or not coming to work if at risk of contracting measles and infecting others – is a willful breach of duty. Disneyland could, therefore, declare that they’re firing any employee who would not prove vaccination with MMR or stay home until the end of the outbreak and past the danger period. But, Disneyland did not do this. Instead, they offered paid leave to their employees who could not show immunization. There just isn’t any problem with this requirement. In fact, it’s hard to think of a more fair one. The unvaccinated employees are themselves at risk – and pose a risk to others. While the MMR vaccine is not 100% effective, two doses protect 99% of those that get them. In comparison, non-vaccination protects, well, zero percent of those who get it. Staying home will protect those who are not vaccinated (or even fully immunized). So they are being paid to do something that is in their interest as well as that of those they may infect. It’s not only legal, its also fair.
The next issue is whether Disneyland has to provide exemptions. What if Mickey Mouse is opposed to vaccines? Can they really force him to choose between his beliefs and his job? As a private company, Disneyland does not have to meet any constitutional requirements, but even private companies have to follow federal labor laws. Two apply here. Title I to the Americans with Disabilities Act requires employers to provide reasonable accommodations to workers with disabilities – a category broad enough to include employees with real contraindications to the MMR. According to the CDC, true contraindications include:
- “Severe allergic reaction (e.g., anaphylaxis) after a previous dose or to a vaccine component
- Known severe immunodeficiency (e.g., from hematologic and solid tumors, receipt of chemotherapy, congenital immunodeficiency, or long-term immunosuppressive therapy5 or patients with human immunodeficiency virus [HIV] infection who are severely immunocompromised)
So, if Mickey or his colleagues meets one of those conditions, then Disneyland should offer an accommodation, unless it would create “undue hardship” (ie., significant difficulty or expense) on the employer’s operation or fellow employees. It seems clear that allowing an unvaccinated (ie. high risk) person to work during an outbreak, and to potentially infect fellow employees or visitors too young to vaccinate, is a significant burden. Particularly when you consider that it will prolong the period during which Disneyland is a “danger zone” and will hamper Disney’s ability to accommodate certain types of visitors (think, for example, about the chronically ill child who really wants to see Disneyland). Here, Disneyland offered its employees paid leave, with no adverse consequences, which seems like a pretty reasonable accommodation.
But what if Mickey Mouse says his religion or personal belief prevents him from vaccinating? This is even easier. The federal Civil Rights Act prohibits religious discrimination and requires employers to “reasonably accommodate” an employee’s “religious observance or practice” unless it will be an “undue hardship” on the employer. And under this law, it is very easy to show “undue hardship” — it’s anything that is more than a very low, trivial cost. As we’ve already seen, it is not a trivial burden to allow unvaccinated employees to work – and again, paid leave can easily be seen as a reasonable accommodation.
The third issue to consider is the effect of unionizing. Disneyland workers are unionized. We know from previous union opposition to mandatory influenza vaccines for healthcare workers, that unions can be successful in challenging these types of employer rules. Some courts have found that flu vaccine requirements can only be imposed if the employer bargained with the union beforehand.
In some cases, when unions opposed them, courts found that influenza immunization mandates for healthcare workers could not be imposed unilaterally: employers had to bargain with the union before they could impose them . But this is not a general rule. It really depends on the language of the collective bargaining agreement (the document that sets the relationship between the union and management). So basically, if there is a union, and it decides it doesn’t like the “immunize or paid leave” policy, it would depend on the specific language in the agreement whether that will be upheld. It’s hard to see why the union would object. The paid leave policy is more than generous, it protects the workers, and maintains Disneyland’s safety.
So here is the short of it: Disneyland’s paid leave policy for non-immunized workers is legal, and Disneyland does not have to offer any exemptions from it. If the union decides to make trouble there may or may not be an issue. Having an infectious disease run free in your park may not be as bad for your clients as having lions run free (depending on the disease, I guess, and the number of lions), but it’s not good, either.
Disneyland is doing the right – and legal – thing to do.