EEO Tips: Mandatory Flu Shot Policies

By Lehr Middlebrooks Vreeland & Thompson, P.C.

August 29, 2018

This article was prepared by JW Furman, EEO Consultant Investigator, Mediator and Arbitrator for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C. Prior to working with the firm, Ms. Furman was a Mediator and Investigator for 17 years with the Birmingham District Office of the U.S. Equal Employment Opportunity Commission (EEOC). Ms. Furman has also served as an Arbitrator and Hearing Officer in labor and employment matters. Ms. Furman can be reached at 205.323.9275.

Believe it or not, summer is almost over and itis again time to think about flu vaccines! How effective will they be this year, will you and your family get shots, and will the flu shot be required for your employees? Many employers believe that in order to keep the workforce healthy and fully staffed during flu season, employees should be inoculated. Before issuing such a mandate, a simple question needs to be asked: Can employers lawfully require all employees to be vaccinated against the flu?

Although the question is simple, the answer most certainly is not. Even in the health care industry, where some states have passed laws requiring workers to be vaccinated and the Center for Disease Control recommends vaccines for all who have patient contact, the answer is not always simple. One might think that health care facilities, above most employers, have a legitimate basis for blanket mandatory flu shot policies and therefore have no problem with enforcement. However, they have been slammed with litigation over vaccinations in the last few years. The Equal Employment Opportunity Commission has either filed or joined several lawsuits over mandatory vaccination policies in medical facilities just in the last year. Although the EEOC says that the law does not prohibit employers in any industry from having mandatory vaccination policies, it cautions that employees may be entitled to exemptions from such mandates under Title VII of the Civil Rights Act or the Americans with Disabilities Act. Once an employee objects to the policy citing a protected basis (usually for medical or religious reasons), the employer’s obligation is the same as with any other request for accommodations under those statutes. The employer must evaluate each exemption request individually and engage in an interactive process with the employee to determine what, if any, reasonable accommodations are available.

The questions that arise while evaluating an employee’s request for accommodation regarding a flu shot requirement do not always have simple answers either. For example, if the request has a religious basis, it must involve a sincerely held religious belief or practice. Courts have expanded the meaning of “religion” for Title VII purposes, so the employee’s religious belief concerning vaccinations may not be within a traditional religious tenet. It is important to have discussions with the employee to understand the request and the reason(s) behind it. Some objections to the policy may involve the method of delivery of the vaccine, other objections may be ingesting it in the first place. If the request for exemption to the policy has to do with a medical condition, a medical professional may need to be consulted after a thorough discussion with the employee regarding his/her concerns. This consultant should be able to address possible effects of the flu vaccine on the employee in relation to his/her existing medical condition and accommodations that may satisfy the needs of both parties. The required interactive process does not end once the request and its background are understood by the employer. The employee needs to continue to be included while exploring possible reasonable accommodations. Even though one party believes he/she has found the perfect solution, another perspective may prove it unworkable. Neither may see his/her “ideal” accommodation applied in the end, but the interactive process does remind both parties that the others’ interests must be considered.

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 a policy that they understand has a beneficial purpose. The policy should explain the process for requesting exemptions and what type of information will be needed to process requests. Distribute the policy and discuss it with employees. In my experience, people are more likely to accept rules made by others (like employers) that are discussed and implemented openly. Employees responsible for enforcing this policy need to receive training regarding what the policy does and does not say, and how to process a request for exemption. They should never threaten or take disciplinary action without exploring the reason an employee refuses to comply with the policy. And they should always, always document every step of the interactive process (because despite best efforts, litigation does happen).

If the not-so-simple answer to the simple question has made you rethink requiring flu shots for all employees, there are steps you can take that may help maintain a healthier workforce during flu season. The EEOC recommends encouraging employees to be vaccinated. Some health plans and employers offer vaccines at no cost to employees. Employers can offer flu shots at the workplace or provide information about local availability. Some provide hand sanitizer to employees and hire more frequent/thorough facility cleaning. And, lastly, search the internet and you can find one or two studies that indicate mandatory flu shot policies do not produce significant benefits.