It’s flu season, a time when every cough and sneeze can strike fear into the hearts of both employees and employers. Nobody wants to come down with a coworker’s case of flu, and employers needing all hands on deck don’t want significant numbers of workers out sick. Therefore, some employers—particularly those in the healthcare field—mandate flu shots for everyone.
Recently, a question about the legality of that practice was put to a group of attorneys for guidance on the matter. So is a mandate legal? Most often, the answer is yes.
An operator of assisted living facilities asked if it’s legal to require all staff to get a flu shot as a way to protect the safety of residents. “Yes, it’s legal to require all employees to get a flu shot,” Karen G. Clay, an attorney with The Kullman Firm in Jackson, Mississippi, says. “Most flu-shot related firings involve healthcare workers who are required to get the shot as a condition of employment. A caveat, though: An employee whose religious beliefs and practices prevent her from having vaccinations and taking medications cannot be forced to get a flu shot or fired for refusing the shot.”
Clay adds that alternatives such as encouraging frequent hand washing, requiring sick employees to stay home, and allowing employees with the flu to work from home are also good ideas.
Jason R. Mau, an attorney with Greener Burke Shoemaker Oberrecht, P.A. in Boise, Idaho, adds that the Advisory Committee on Immunization Practices (ACIP) and the Healthcare Infection Control Practices Advisory Committee (HICPAC) recommend vaccinating healthcare personnel and recommend that healthcare employers implement an education program on the health benefits and consequences of vaccination.
“The ACIP and the HICPAC also recommend that you offer flu vaccines annually to all healthcare employees and encourage employees to get a flu shot by obtaining signed declinations from those who do not wish to be vaccinated for reasons other than medical contraindications (e.g., egg allergies or asthma),” Mau says.
H. Mark Adams, a partner with Jones Walker LLP in New Orleans, Louisiana, agrees that there’s no legal prohibition against mandatory flu vaccinations, but he advises employers to “be prepared for religious objections and pushback from employees who suffer from medical conditions that could be aggravated by the flu vaccine.” He says objections should be dealt with on a case-by-case basis and in consultation with an employment attorney.
Michael Barnsback, a partner with the LeClairRyan law firm in Alexandria, Virginia, covered flu issues in an article in the March edition of Virginia Employment Law Letter. He pointed out how federal employment laws can be implicated when vaccinations are required. Title VII of the Civil Rights Act of 1964 may require an employer to grant an exception to employees with a sincerely held religious belief that prohibits them from getting a flu shot. “The definition of ‘religion’ is very broad and is not limited to traditional organized religions,” he says, adding that accommodations aren’t necessary for people who have a secular philosophical opposition to getting the shot.
The Americans with Disabilities Act also may mean that an employee should be exempt from a flu shot requirement. “An ADA-covered disability may prevent an employee from getting a vaccine,” Barnsback says. “If that’s the case, you may require him to wear protective clothing (e.g., a face mask or gloves) so long as your demand is for legitimate, nondiscriminatory reasons.”
Also, pregnancy-related impairments may present another reason to allow someone to skip the shot. Barnsback says the Equal Employment Opportunity Commission recommends that pregnant employees not be required to take a vaccination, but employers can encourage the shot.