This year has presented many challenges, including a global health pandemic, wildfires, hurricanes, and social justice unrest, and yet we now face a fast approaching influenza season that is sure to bring on more coughs, sneezes and hiccups. In light of the ongoing health crisis and resulting disruption caused by the COVID-19 pandemic, employers may find themselves considering a mandatory flu vaccination as a way to keep their workforce healthy and productive during the fall and winter months.
Can You Require All of Your Employees to Get a Flu Vaccine?
Yes and no. Generally, employers can establish legitimate health and safety standards, policies, and requirements so long as they are job related and consistent with business necessity and so long as they consider reasonable accommodations for disabilities and religious beliefs. That includes implementing a mandatory flu vaccination program. Mandating vaccines is most common in industries and occupations where employees provide personal services to individuals who are at high risk of developing serious complications if they were to contract the flu (e.g., adults 65 and over, young children, women who are pregnant, and some people with chronic health impairments). However, as our parents often admonish, just because you can does not mean you should. Before you mandate flu vaccines, you should take proper precautions and allow for exceptions.
OSHA Says Inform and Educate
OSHA takes the position that employers can require employees to take influenza vaccines but emphasizes that employees “need to be properly informed of the benefits of vaccinations.” OSHA also explains that:
an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act pertaining to whistleblower rights.
Employers are advised to develop consistent written communication to employees about the efficacy of a flu vaccine, provide details about how a mandatory program would be administered, and perform supervisor training on how to address objections (covered in more detail below). Also, your policy should clearly describe the process for requesting an exemption or accommodation for employees who object to the vaccine.
Circumstances When an Employee Must Be Granted an Exemption
The EEOC has identified two principal exemptions to mandatory vaccination requirements: disabilities under the ADA and sincerely held religious beliefs under Title VII.
- Disability-based objections – If an employee claims a qualifying disability under the ADA, you may be required to grant an exemption to mandatory flu vaccinations as a reasonable accommodation unless it would result in undue hardship to the employer. First, determine if there is a reasonable accommodation. If the employee does not take the vaccine, can he or she wear PPE? If the only accommodation is exempting the employee from the flu shot, is that an undue hardship? As a reminder, under the ADA, “undue hardship” is “significant difficulty or expense” incurred by the employer in providing an accommodation. As with any request for an accommodation, you must engage in an interactive process to determine if reasonable accommodations are available that would allow the employee to perform the assigned job or another available job for which the employee is qualified. If an employee claims to have a health condition that makes getting vaccinated a health risk, you do not have to take the employee’s word for it and instead should ask the employee to provide documentation from a physician before exploring accommodations for someone without an obvious impairment.
- Religious Objections – You also have an obligation to accommodate sincerely held religious beliefs. A religiously grounded objection to vaccination must be the product of an authentic and sincerely held belief, which can be contested. Nevertheless, courts have broadly interpreted “religion” in the context of required vaccination policies. For example, one court held that an employee’s veganism was a sincerely held religious belief and the employee’s dismissal for refusal of a vaccine that included animal by-products constituted religious discrimination. The best practice is not to judge the validity of an employee’s claimed religious practice, but rather engage in the interactive process and evaluate whether (1) there is reason to believe that the employee’s religious beliefs are not sincerely held; (2) there is a reasonable accommodation available that does not pose an undue hardship; and (3) whether you have granted a similar accommodation for other reasons, such as for a disability.
If you elect to implement mandatory flu vaccinations, you should develop and publish a written policy explaining your expectations and clearly describe how an employee may request an exemption or accommodation. You should also ensure compliance with any applicable state or local regulation as some states have personal privacy laws that could be the basis for individual challenges to mandatory vaccinations. On the other hand, other states specifically require vaccinations for employees in certain industries such as eldercare, healthcare and/or childcare. You should consider paying or reimbursing employees for the cost of a mandatory vaccination and compensating employees for the time it takes to have the vaccination administered. Finally, you must also safeguard the privacy of employees’ medical information, including but not limited to keeping it separate from your general personnel files.
To Mandate or Not to Mandate
Although promoting a safe workplace and protecting the health and wellbeing of your workforce is a noble cause, you should proceed with caution in implementing an across-the-board, mandatory flu vaccination policy. As a first step, encourage your employees to be vaccinated and provide them with the opportunity to be vaccinated at their worksite during work hours by a licensed healthcare provider. You should consult with an attorney before implementing any workplace vaccination policy to avoid missteps and ensure your policy is legally compliant.