2015 12 15 flushot

While we have enjoyed a mild fall, flu is on its way. Every fall, I get my flu shot because when I was in college I got the flu and it made me terribly sick. This experience left a lasting impression. I am determined not to be victim of the flu again.

Many employers and those in the health-related fields might consider mandatory vaccination policies for their employees. Protecting patients, fellow employees, and the public at large provide many incentives for health care providers to encourage flu vaccination.

However mandatory vaccinations are hotly debated. Last year, the Center for Disease Control (CDC) admitted that the flu vaccine was less effective than usual, but continued to recommend vaccination. These circumstances might put in question mandatory vaccination policies. When it comes to the workplace, employers must also carefully craft and enforce vaccination policies to avoid legal challenges.

Can You Mandate the Flu Shot for Employees?

Yes, but beware of exceptions. The Americans with Disabilities Act (“ADA”) requires reasonable accommodations for employees with disabilities and sincerely held religious beliefs under Tile VII.

What Disabilities Excuse Employees from the Flu Shot?

There is no definitive list of disabilities and medical conditions that excuse compliance with mandatory flu shots. Employees with medical conditions preventing them from getting the flu shot must be accommodated unless doing so would pose an undue hardship on the employer.

Because the ADA strictly limits disability-related inquiries, exemptions must be examined on a case-by-case basis. When an accommodation is requested, the employer should engage in a dialogue with the employee to determine the limitations and what accommodations are feasible. For example, an employee exempt from the shot could be required permission to wear a protective mask. Employees are also legally obligated to cooperate in the accommodations process such as granting employer permission to speak with their doctor. Employees cannot insist on an accommodation of their choice.

Religious Objections

Title VII 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. Since religious beliefs do not have to be recognized by an organized sect or be theological in nature to be entitled to protection, employers cannot require verification from clergy. It is possible to challenge the sincerity of an employee’s religious belief but it is tricky.

Fears, Misconceptions, and Other Objections

Employees may resist the flu shot for a variety of reasons. They may be concerned that it could trigger the flu, afraid of needles, or they object to the mandate to get a shot. For the most part, these reasons are “personal preferences” that employers do not need to accommodate. However, if you choose to mandate the flu vaccine, be prepared to decide if an employee’s refusal is based on a legitimate objection (medical or religious), or on a personal preference.

Terminations and Unemployment

If an employee refuses to comply with a mandatory policy, employers are faced with the decision to discipline or terminate an employee. The key here is consistency. Consider your legal exposure. You may be at increased risk of a lawsuit if:

–          You have inconsistent enforcement of the flu shot policy,

–          Accommodations have been provided employees with similar objections, or

–          The employee has previously complained of discrimination.

Note that employees terminated for refusal to get a flu shot might seeks and be entitled to unemployment benefits in some cases. Several such cases are being litigated.

What’s Your Policy?

Your flu shot policy can run the gamut from completely voluntary, to “strongly encouraged”, to mandatory with only the exceptions required by law.

However, before imposing any policy, consider the culture of your organization, the goals for such a policy, and the effectiveness of your sick leave and leave of absence policies. Employers who choose to beef up their flu shot policy should educate employees to reduce misconceptions and make sure employees understand the rationale for the decision.

If you have questions about your employment policies, call for your free consultation at 757-303-1635.