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Flu Shots: Making Them Mandatory?

By Faith Driscoll, Esq.

Can employers minimize the impact on business of employee absences due to more frequent illness during flu season by making a flu shot mandatory for workers?  The short answer is yes, but there are several issues to consider prior to rolling out a policy requiring flu shots.  Employers must comply with the reasonable accommodation requirements of the federal Americans with Disabilities Act and the California Fair Employment and Housing Act when it comes to making exceptions.  Employees may be entitled to an accommodation (such as an exemption from taking the flu vaccine) due to a disability or sincerely held religious belief, practice, or observance preventing the employee from taking the vaccine.

Accommodating a Disability.  Employers must recognized that not all employees may be able to receive the flu vaccine.  Therefore, the company cannot require all employees to take the flu vaccine and ignore employees’ medical conditions.  For example, an employee may have a disability that has compromised the employee’s immune system.  Any policy imposed by an employer should include a direction for employees who are unable to take the flu vaccine due to a disability to contact the appropriate supervisor or HR manager to discuss an accommodation.

Religious Accommodations.  Religion has been defined very broadly to include not only traditional, organized religions but also religious believes that are new, uncommon, not part of a formal church or sect, only adopted by a small number of people or that may seem illogical or unreasonable to others.  Employers are entitled to scrutinize a belief to determine whether it is a sincerely held religious belief entitling the employee to an exception to the policy.  The EEOC states that employers should “ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief,” but if an employer has “an objective basis for questioning the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.”  Like employees with a disability, employees with a religious belief that precludes vaccination should be directed to the appropriate person to discuss accommodations.

Interactive Process.  If an employee requests an accommodation due to either disability or religious reasons, the employer must engage in the interactive process with the employee to determine what accommodation can be implemented for the employee.  The focus should be on identifying an alternative which will achieve the same goal as the vaccine: reduce the spread of illness.  This may be in the form of other infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal.  Additionally, if a pandemic arises or the employee works in a health care facility, an employer may require the employee to wear personal protective equipment such as a mask or gloves. 

Undue Hardship.  An employer may not have to provide the accommodation, however, if it can demonstrate that providing an accommodation creates an undue hardship.  The EEOC explains that facts relevant to determining whether an undue hardship exists include:

  • the assessment of the public risk posed at a particular time;
  • the availability of effective alternative means of infection control; and,
  • the number of employees who actually request an accommodation.

Additional information can be found in a technical assistance document released by the EEOC entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.

Member Forum.  Does your workplace have a policy requiring flu vaccines?  How has it impacted your workplace?  Share your thoughts on this topic with SHRM Tulare/Kings in our Member Forum.  To access the page, log on, then select the Member Forum page from the Members menu.

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