We have a mandatory flu vaccination policy. When can we discipline employees who don’t get a flu shot? And how should we deal with employees who refuse to get vaccinated?
Quick Answer
Employers who have a mandatory flu vaccination policy should not discipline employees who do not get a flu shot for valid medical or religious reasons.
Legal Perspective
Ogletree Deakins
St. Louis, Missouri
Disciplining or discharging an employee for failing or refusing to get an annual influenza vaccine could get prickly. State and federal anti-discrimination laws require employers to consider providing reasonable accommodations to employees with sincerely-held religious beliefs and disabilities, says employment law attorney Jim Paul (jim.paul@ogletree.com) of the international law firm Ogletree Deakins. As a result, it’s wise to:
- Craft employee communications about this topic very carefully to minimize the morale or political issues that might arise in the workplace.
- Have a formal process in place for employees to request an exemption from the policy or for another type of accommodation.
- Remember that “religion” and “disability” are defined very broadly and, in fact, some states define these categories much differently than federal law, sometimes requiring accommodation for pregnancies and other medical conditions that would not rise to the level of a “disability” as defined by the Americans with Disabilities Act.
- Follow up with employees to ensure that approved accommodations remain effective and feasible and reserve the right to modify or discontinue an accommodation if it becomes an undue hardship.
- Fully document the accommodation process.
Relevant Case Law
Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania
HR Insight
US Real Estate Services Inc.
Foothill Ranch, California
This can be tricky, and discipline may not be the way to go, says HR Manager Sallie Hansen. I’d want to understand the reason for the refusal, as there could be religious, cultural or other health issues involved. So it’s important to be considerate of their situation.
I’d consider adding a section in the policy that asks the employee if they’re willing or able to adhere to the policy. If they selected “No,” I’d include follow-up questions, such as: “If you answered no to the above question, please select from the following reasons: Religious; Health; Cultural; Decline to answer. Or please contact HR for further clarification and instruction.”
Such a provision in the policy can alert HR that employees may need a reasonable accommodation or an exception to the policy.
When putting this process together, please keep in mind that while COVID-19 had very specific reasons for exemption (religious and medical), there may be other reasons people have for not wanting the vaccine, and the company needs to set a standard and be consistent in allowing the exemptions.
Everde Growers
Houston, Texas
Education is key, says Carmela Bozulich, a Recruiter in California. Making sure employees understand why it’s important and what’s in it for them can help overcome many misgivings about vaccination policies.
However, should you have employees who continue to refuse, I’d allow them to provide a reason, much like what was done with COVID-19 vaccinations, as accommodations or an exemption may be appropriate.
Westside Family Healthcare
Wilmington, Delaware
We’re in the healthcare industry, and we don’t require the flu vaccine, says HR Director Aggie Flores. Even so, most of our employees get the flu shot. For those who don’t get one, we require them to wear a mask at all times, except when eating or drinking.
Before a company decides to implement a vaccine requirement, a detailed discussion should be had regarding the reason for the mandatory requirement. Make sure the reason is a legitimate business or safety need. If you require employees to get a flu vaccine, you should also have a process for requesting an exemption. To ensure requests are handled consistently, consider:
- What the company considers legitimate reasons for not complying with the vaccination policy
- Potential accommodations for employees who have a legitimate reason for not getting vaccinated, and
- Potential consequences for employees who do not have a legitimate reason and do not comply with the policy.
The Cost of Noncompliance
Employer pays $100K to settle Title VII vaccine dispute
Who was involved: Inspira Medical Centers, Inc., also known as Inspira Health Network, which owns and operates several hospitals and health centers in New Jersey, and five employees.
What happened: Prior to 2020, the employer’s influenza vaccination policy provided for medical and religious exemptions. In 2020, the policy was modified to comply with a new state statute requiring healthcare workers to get the flu vaccine. The statute provided for medical exemptions but didn’t provide religious exemptions. The employer then modified its pre-existing flu vaccine policy, removing the option for religious exemptions. It then denied five employees’ requests for religious exemptions. The employees filed a complaint with the EEOC, which determined the alleged conduct amounted to a violation of Title VII.
Result: The employer agreed to pay $100,000 in compensatory damages to five employees and also agreed to:
- Revise its flu vaccine policy to explicitly provide employees an exemption to the policy because of an employee’s sincerely held religious beliefs
- Disseminate the revised policy to all employees, and
- Grant requests for reasonable accommodations to its influenza vaccination policy based on sincerely held religious beliefs, except where doing so would impose an undue burden on the company.
Info: Inspira Medical Centers to Pay $100K Over Flu Vaccine Policy, 5/31/23.
Employer pays nearly $75K after rescinding job offer to Christian who refused to get flu shot
Who was involved: Memorial Healthcare, which operates a hospital in Michigan, and a medical transcriptionist.
What happened: According to the EEOC’s law, the hospital required employees to get flu shots. It extended a job offer to the transcriptionist, a Christian who said her religious beliefs prevented her from getting inoculated. She offered to wear a face mask during flu season, which was an acceptable alternative under hospital policy for employees with medical conditions that prevented them from getting the flu shot. Even so, the company refused to extend the medical accommodation to her religious request. Instead, it rescinded the job offer.
Result: The company paid the transcriptionist $34,418 in back pay, $20,000 in compensatory damages and $20,000 in punitive damages. It also agreed to:
- Revise its policy to allow employees with religious objections to wear face masks in lieu of getting the flu shot.
- Provide training to managers on the revised religious accommodation policy and its procedures to navigate the accommodation process.
Info: Memorial Healthcare to Pay $74,418 to Settle EEOC Religious Discrimination Lawsuit, 6/25/19.
Vaccine dispute: Employer pays $89K to employees who were fired over flu shots
Who was involved: Mission Hospital, Inc. and three former employees who worked in North Carolina.
What happened: Hospital policy required employees to obtain annual flu vaccines by a certain date. Employees were permitted to request a religious exemption to the vaccination requirement, but if the request was not made by Sept. 1, then it was denied. Three employees sought religious exemptions after the deadline, and their requests were denied. They were subsequently fired.
Result: The company paid a total of $89,000 which was distributed to the three employees. Under a two-year consent decree, the company agreed to:
- Revise its immunization policy to allow employees to request an exemption during the same period in which flu vaccines are to be received.
- Conduct annual training for supervisors and managers on Title VII and an employer's obligations with respect to religious accommodations.
- Post a notice informing employees about the lawsuit and their rights.
- Submit periodic compliance reports to EEOC concerning requests for religious exemptions from the flu vaccine requirement.
Info: Mission Hospital Agrees to Pay $89,000 To Settle EEOC Religious Discrimination Lawsuit, 1/12/18.
Employer pays $300K to settle EEOC’s religious accommodation lawsuit
Who was involved: Saint Vincent Health Center and six former employees who worked in Pennsylvania.
What happened: In 2013, the employer implemented a mandatory seasonal flu vaccination requirement for employees unless they were granted an exemption for medical or religious reasons. Under the policy, employees who received an exemption were required to wear a face mask, and employees who refused the vaccine but were not granted an exemption were fired. The six employees sought exemptions based on sincerely held religious beliefs, and their requests were denied, according to the EEOC’s lawsuit. When they continued to refuse the vaccine, they were fired. The EEOC further alleged that the company received – and granted – 14 vaccination exemptions based on requests for medical reasons while “denying all religion-based exemption requests.”
Result: The company paid $300,000 which was distributed to the six former employees. It also:
- Offered to reinstate the workers.
- Revise its flu vaccination policy.
- Notify employees of their right to request religious exemptions and establish procedures for considering such requests.
- Provide training to key personnel on Title VII.
Info: Saint Vincent Health Center To Pay $300,000 To Settle EEOC Religious Accommodation Lawsuit, 12/23/16.
Key Takeaways
- Employers who choose to implement a mandatory flu vaccine policy must be aware of the requirements of the Americans with Disabilities Act (ADA) and Title VII.
- Under the ADA, an employee may be excused from complying with a flu vaccine requirement for a medical reason.
- If an exemption is sought for a medical reason, employers should engage in an interactive process to determine whether a reasonable accommodation is available.
- Under Title VII, an employee may be excused from complying with a flu vaccine requirement based on a sincerely held religious belief.
- A religious accommodation need not be granted if it would impose more than a de minimis cost on the employer.
- Employers with a mandatory flu vaccine policy should have a written policy that describes how their employees can request a religious or medical exemption.
- The Equal Employment Opportunity Commission has taken the position that employers should encourage but not require employees to get the flu vaccine.
- State laws on mandatory vaccine policies vary, and employers must take those laws into account when implementing a mandatory vaccine policy.
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