Mandatory Flu Vaccine Decision Highlights Risks of Mandating COVID-19 Vaccine

Elizabeth B. Chilcoat

A New York hospital sought to reduce the transmission of influenza by requiring employees to submit to the flu vaccine or face dismissal unless they could establish a medical contraindication warranting an exemption.  A vascular technologist requested an exemption because she was pregnant, the vaccine was not well-studied in pregnant women, and the manufacturer recommended vaccination of pregnant women “only if clearly needed.”  After the hospital denied her request, she refused vaccination and was dismissed from employment. 

Last month, in LaBarbera v. NYU Winthrop Hospital, the court granted the hospital summary judgment on the technologist’s claims under the Pregnancy Discrimination Act (PDA) and New York State Human Rights Law.  The technologist failed to present comparator evidence to show disparate treatment discrimination (different treatment based on pregnancy) and disparate impact discrimination (different impact from a facially neutral policy). The court concluded that evidence that similarly situated non-pregnant workers were treated more favorably is an essential element of both claims. The court rejected the technologist’s state law claims for failure to accommodate and failure to engage in an interactive process because neither growing a healthy baby nor taking medication (a vaccine) are pregnancy-related medical conditions under the state law. 

However, the court sounded a note of caution for employers who might be tempted to eschew masks in favor of mandating vaccines, whether for flu or COVID-19. The hospital’s argument that masks were not effective at preventing transmission of disease was undercut by its expert’s public interviews about the benefits of masking and the hospital’s own public statements encouraging masking to prevent transmission of COVID-19.  Even in the midst of a pandemic, employers are wise to keep their health and safety messaging consistent when possible.