With colder weather beginning to creep in, many employers are looking at their influenza vaccination policies with fresh eyes. COVID-19 and the seasonal flu share common symptoms, which can complicate your efforts to prevent their spread. With the nation’s healthcare system already stretched thin because of the coronavirus crisis, a potential flu outbreak could cause panic among workers and significantly affect your business operations. With those considerations in mind, you may be wondering if you can require employees to get a flu shot this year. And what happens when a coronavirus vaccine becomes available?
Can You Require Workers to Get Inoculated?
The short answer is a qualified yes, but the right to require shots and vaccinations isn’t absolute. For example, federal equal employment opportunity (EEO) laws categorically bar employers from applying a blanket rule requiring all employees to be vaccinated regardless of disability status or religious belief.
In other words, while you may require employees to get the flu shot (and a COVID-19 vaccination if and when one becomes available to the public), you may have to adjust the policy or excuse its application to certain individuals on disability or religious accommodation grounds. Both are discussed in more detail below.
Available Exemptions
When putting your vaccination policies into practice, you should be mindful to avoid violating federal and state discrimination laws—in particular, the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
In 2009, during the H1N1 pandemic, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance specifying employers may not categorically require all employees to get flu shots. Instead, you may be required to excuse the requirement for certain employees as a disability accommodation under the ADA or a religious accommodation under Title VII.
Medical exemptions. Under the ADA, employees may be entitled to an exemption from a mandatory vaccination requirement if they have a disability that prevents them from taking the vaccine. Exempting an individual from the mandatory vaccine policy may be a reasonable accommodation, depending on the particular circumstances, as discussed below. Regarding flu shots, the issue has come up when an employee is allergic to eggs, which are used to make some influenza vaccines.
Religious reasons. Similarly, a Title VII violation occurs when an employer fails to reasonably accommodate an individual whose religious observance or beliefs conflict with a work rule—such as a vaccination mandate. While the employee’s objection must be rooted in a “sincerely held” religious belief, the EEOC has made clear the protected religions aren’t limited to major, well-recognized faiths.
You should be aware of the breadth of the religious exemption. Indeed, “an employee’s belief or practice can be ‘religious’ under Title VII even if no religious group espouses such beliefs or . . . the religious group to which the individual professes to belong [does] not accept such belief.”
Weighing ‘Hardship’ to Employer
If an employee requests a reasonable accommodation on disability or religious grounds, the employer has an obligation to provide one unless and until doing so would impose an undue hardship. “Undue hardship” doesn’t mean the same thing when applied under the ADA and Title VII.
- Under the ADA, undue hardship means “significant difficulty or expense” when considered in light of the accommodation’s net cost, the employer’s overall financial resources, its type of operation, and the impact on the business.
- Under Title VII, however, the U.S. Supreme Court has interpreted undue hardship to mean anything more than a de minimis (or bare minimum) burden.
In either case, the employer should engage in an interactive process with the employee to determine the nature of the disability or religious conflict, its impact on the individual’s ability to perform the essential job functions or meet the work requirement, and whether a reasonable accommodation exists that wouldn’t impose an undue hardship.
Check State or Local Laws
Outside of the ADA and Title VII, you may have to follow state or local laws limiting your right to mandate vaccinations. The U.S. Centers for Disease Control and Prevention (CDC) collects many of the state and local laws here. Consult with local counsel before implementing any new policies.
Bottom Line
Even though mandatory vaccination policies may be legally permissible in many instances, you must clear a number of legal hurdles. Indeed, the EEOC’s most recent guidance recommends “ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”
Nevertheless, you should conduct your own internal risk assessments and consider what makes sense for your organization, not only in the context of the flu vaccine but also in the event a COVID-19 vaccine becomes available. Since the EEOC has labeled the coronavirus as a “direct threat,” it’s possible the agency will update the guidance when a vaccine is available.
Rae T. Vann is a Shareholder with Carlton Fields in Hartford, Connecticut, and Washington, D.C. You can reach her at rvann@carltonfields.com. Amanda M. Brahm is an Associate at Carlton Fields and can be reached at abrahm@carltonfields.com.
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