Flu season aheadWhile we continue to enjoy warm September weather, flu season (typically lasting from October through May) will soon be here. Many employers—health care providers in particular—are now considering or preparing to implement mandatory vaccination policies for their employees. Besides protecting patients, other employees, and the public, health care providers have an incentive to increase employee vaccination rates to comply with private accreditation agency requirements and meet a government and CDC target vaccination rate of 90% by 2020.

Despite the cooler temperatures, mandatory vaccinations continue to be hotly debated. Last year, the CDC admitted that the flu vaccine was less effective than usual, but continued to recommend it for everyone 6 months and older. This has not stemmed the tide of opposition to mandatory vaccination policies. When it comes to the workplace, management must carefully craft and enforce vaccination policies to avoid being burned by lawsuits.

Can We Mandate the Flu Shot for Our Employees?

Short answer: yes – but beware the exceptions under state and federal law. The Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act, and similar state statutes require reasonable accommodations for employees with disabilities and sincerely held religious beliefs.

What Disabilities Excuse Employees from the Flu Shot?

There is no definitive list of disabilities and medical conditions that excuse compliance with workplace flu shot policies. Under the ADA Amendments Act of 2008, which broadened the federal definition of disability, employees with medical conditions preventing them from getting the flu shot must be accommodated unless doing so would pose an undue hardship. Because the ADA strictly limits disability-related inquiries and medical examinations, exemptions must be examined on a case-by-case basis. When an accommodation is requested, the employer should engage in the interactive process—a dialogue with the employee to determine his or her limitations and what accommodations are feasible (i.e. exemption from the shot and permission to wear a protective mask). Employees are also legally obligated to cooperate in the accommodations process (including granting the employer permission to speak with their doctor), and cannot insist on the accommodation of their choice.

Religious Objections

Title VII and state anti-discrimination laws require employers to accommodate sincerely held religious beliefs. The line between “religious” beliefs entitled to protection and “secular” personal preferences can be difficult to draw. In 2012, an Ohio court denied a motion to dismiss a religious discrimination claim, reasoning that a vegan who refused a flu shot could potentially show her beliefs were held “with a sincerity equating that of traditional religious views.” Moreover, since religious beliefs need not be recognized by an organized sect (or even be theological in nature) to be entitled to protection, employers cannot require verification from clergy. While the EEOC has acknowledged that it is possible to challenge the sincerity of an employee’s religious belief, it remains difficult to do so.

 

Fears, Misconceptions, and Other Objections

Employees may resist the flu shot because they believe it can cause influenza, are afraid of needles, or feel that a mandate encroaches on their personal liberty. For the most part, these reasons are “personal preferences” that employers do not need to accommodate. However, employers who choose to mandate the flu vaccine must be prepared to make the sometimes difficult decision about whether an employee’s refusal is based on a legitimate medical or religious objection, or on a mere personal preference.

Terminations and Unemployment

If an employee refuses to comply with a mandatory policy, management may be faced with the decision of whether to discipline or terminate the employee. Employers should consider any factors that increase litigation risk, such as inconsistent enforcement of the flu shot policy, whether accommodations may have been provided to other employees with similar objections, and whether the employee has previously complained of discrimination. Employers should also be aware that in New Jersey, employees terminated for refusal to get a flu shot are entitled to unemployment benefits.

What’s Your Policy?

Flu shot policies can run the gamut from completely voluntary, “strongly encouraged” with other options such as protective masks, or mandatory with only the exceptions required by law. Before imposing any policy, consider your organization’s culture, current compliance rate and goals, and the effectiveness of existing measures, such as sick leave and leave of absence policies. Employers who choose to beef up their policies should educate employees about the flu shot to reduce misconceptions and make sure the guidelines are well understood.

 


Ivo Becica- 3394Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or ivo.becica@obermayer.com.

 


Alexander V. Batoff focuses his practice on counseling clients on federal and state employment laws and regulations and defending them in litigation.  He may be reached at 215-665-3048 or alexander.batoff@obermayer.com.