Believe it or not, summer is almost over, and it’s time to think about flu vaccines again! How effective will the shots be this year? Will you and your family get them? Can you require your employees to be vaccinated? Many employers believe that employees should be inoculated to keep the workforce healthy and the office fully staffed during flu season. Before you issue such a mandate, however, a simple question needs to be answered: Can employers lawfully require all employees to be vaccinated against the flu?
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Don’t Take a Shot in the Dark
Although the question is simple, the answer most certainly isn’t, even for employers in the healthcare industry. Some states have passed laws requiring healthcare workers to be vaccinated, and the Centers for Disease Control and Prevention (CDC) recommends vaccines for all workers who have patient contact. You might think that healthcare facilities, more than most employers, have a legitimate basis for adopting blanket mandatory flu shot policies and would therefore have no problem enforcing them. However, medical facilities have been slammed with litigation over flu vaccinations in the last few years, with the Equal Employment Opportunity Commission (EEOC) either filing or joining several lawsuits over mandatory vaccination policies in the last year alone.
Although the EEOC says there’s no law that prohibits employers in any industry from having mandatory vaccination policies, the agency cautions that employees may be entitled to exemptions from such mandates under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act (ADA). Once an employee objects to a mandatory vaccination policy based on a protected status (in this context, usually for medical or religious reasons), the employer has the same obligation it would have for any other request for accommodation under Title VII or the ADA: It must evaluate each request for exemption individually and engage in an interactive process with the employee to determine what, if any, reasonable accommodations are available.
Questions that arise while you’re evaluating an employee’s request to be exempted from getting a mandatory flu shot don’t always have simple answers, either. For example, if the request is based on the employee’s religion, it must involve a sincerely held religious belief or practice. Courts have expanded the meaning of “religion” for Title VII purposes, so employees’ religious beliefs about vaccinations may not necessarily conform with traditional religious tenets. It’s important to engage in discussions with the employee to understand her request and the reasons behind it.
Some employees may object to flu shots based on the method of delivering the vaccine; others might object to the vaccine entering their bodies in the first place. If an employee’s request for exemption from the policy has to do with a medical condition, you may need to consult a healthcare professional after you engage in a thorough discussion of the employee’s concerns. The consultant should be able to address the possible effects of the flu vaccine on the employee’s medical condition as well as any accommodations that may meet both of your needs.
The required interactive process doesn’t end once you understand the employee’s request to be exempted from a flu shot. The employee needs to be included throughout the entire reasonable accommodation process. Even when you think you’ve found the perfect solution, it may prove unworkable from the employee’s perspective. Neither of you may get your “ideal” accommodation in the end, but the interactive process provides a reminder that each party’s interests must be considered.
Give it Your Best Shot
An effective policy should clearly state a legitimate need or basis for requiring employee vaccinations. Employees who prefer not to be inoculated are less likely to request exemption from the policy if they understand it has a beneficial purpose. The policy should explain the process for requesting exemptions and list the type of information that will be needed to establish the legitimacy of an exemption request.
After you’ve formulated the policy, distribute it to all of your employees, and discuss it with them. In my experience, people are more likely to accept rules made by others (including their employer) if the rules are communicated and implemented openly. Employees who are responsible for enforcing the policy should be trained on what it says—and doesn’t say—and how to process exemption requests. They should never threaten or take disciplinary action against an employee without exploring the reason she is refusing to comply with the policy. And they should always document every step of the interactive process because despite your best efforts, litigation does happen.
Bottom Line
If the not-so-simple answer to the simple question posed at the beginning of this article has made you rethink your decision to require your employees to get flu shots, don’t despair. There are steps you can take to help your workforce remain healthy during flu season.
The EEOC recommends that employers encourage employees to be vaccinated on their own. Some health plans and employers offer vaccines at no cost to employees. You can offer flu shots at your workplace or provide employees with information about their local availability. You can also provide hand sanitizer for employees and have your facility cleaned more frequently or thoroughly during flu season. And finally, you can console yourself with an Internet search that may uncover one or two studies indicating mandatory flu shot policies don’t produce significant benefits.
JW Furman is an EEO consultant investigator, mediator, and arbitrator at Lehr Middlebrooks Vreeland & Thompson, P.C. Before working with the firm, Furman was a mediator and investigator for 17 years with the Birmingham District Office of the EEOC. She has also served as an arbitrator and hearing officer in labor and employment matters. She may be contacted at jfurman@lehrmiddlebrooks.com.