As fears of coming down with a new, exotic strain of the flu increase, a lot of employers are asking the question: Can we require employees to get a flu shot? Here’s the answer.
Generally, yes. Employers can make getting vaccinated for the flu mandatory.
But be careful. Any mandatory flu policy has to be flexible enough to allow for two major exceptions:
- Some employees have to be able to opt out for medical reasons, and
- Some employees have to be able to opt out for religious reasons.
And it’s best to let employees know this up front, so they know these exceptions exist and that your policy contains some legally required flexibility.
When an employee states a medical- or religious-based reason for not wanting to comply with a mandatory flu shot policy, you have to be willing to enter the interactive process to see if there’s reasonable accommodation you can provide for that employee.
That accommodation may include:
- Exempting the employee from the policy
- Allowing the person to wear a mask when around other people, and/or
- Transferring the person to another area where he/she won’t be near as many people.
And remember, when it comes to religious accommodations, the EEOC says you must be willing to seek accommodations for any “sincerely held religious belief.”
Translation: Tread carefully when it comes to calling individuals’ beliefs into question. You have to reach a pretty high bar to prove an employee’s religious belief isn’t sincerely held.
What little guidance there is
The EEOC has offered little in the way of official guidance on this subject, but it did address mandatory flu vaccine policies in its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act fact sheet it issued a few years ago.
In the Q&A section of the fact sheet, the agency addresses the following query:
May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
The EEOC then goes on to suggest that rather than implementing a mandatory vaccination policy, employers should instead simply encourage employees to get vaccinated.