Mandatory Vaccinations in the Workplace

When it’s nasty virus season, what’s an employer to do when it comes to employee health and company productivity? Can an organization legally require its employees to get a vaccine for influenza? Or for COVID-19 when one becomes available? What should an employer do if an employee requests an exemption? This post will discuss whether employers can make flu (or other) vaccines mandatory and the risks associated with such a policy, how an organization should respond to requests for accommodation, and alternatives to a mandatory flu vaccination policy.

Is a Mandatory Flu Vaccination Policy Legal?

Generally speaking, yes, it is legal for an organization to have and enforce a mandatory flu vaccination policy. That said, there are a number of factors employers should carefully consider before terminating an employee for noncompliance. First, does state law say anything about mandatory vaccines in the workplace where your company does business? Organizational policy must be consistent with state law.

Second, what is the company’s industry? Depending on the industry, state law may be in favor of mandatory flu vaccines. For example, in Colorado, healthcare entities are required by law to have 90% of their healthcare workers vaccinated against the flu.

Third, what is the relationship between the company and the employee? Does the employee work at will or under contract? Most employees work at will and can be fired for any reason as long as the termination is not illegal (like discrimination). Contract employees may have negotiated terms relating to vaccines and any action taken by the employer must be consistent with the employment contract or it could create legal liability for the employer.

Fourth, are the employees unionized? If so, negotiations regarding vaccinations may be part of a collective bargaining agreement and could limit an organization’s ability to terminate noncompliant workers.

Finally, has the employee asked for a waiver from the vaccine requirement due to medical or religious purposes? If an employee seeks a waiver for medical or religious purposes, the employer must be prepared to accommodate disabilities and sincerely held religious beliefs. Failure to accommodate could expose the organization to liability.

Accommodating Employees

Even a mandatory flu vaccination policy must allow for exceptions. Under federal and state discrimination law and the Americans With Disabilities Act (ADA), employers are required to accommodate persons with disabilities and those with religious objections. In the case of those with disabilities, some employees may have medical conditions that make taking a vaccination dangerous. Employers can request a note from the employee’s physician explaining the medical issue. If an employee can provide that information to the employer, the employer should be prepared to waive the requirement for the employee.

For those with religious objections, the employee must demonstrate that the objection is rooted in a sincerely held religious belief. The Equal Employment Opportunity Commission (EEOC) has been clear that the term “religion” can be broadly interpreted and that religious beliefs can be new, uncommon, and not part of formal church doctrine. The religious belief can even seem unreasonable or illogical, or occasionally, not particularly religious. A federal court in Ohio held that an employee’s objection to the flu vaccine, due to her commitment to practice veganism, could be deemed “religious.” The employer tried to make the argument that veganism was only a dietary preference and not a religious view. The court disagreed and responded that the employee could hold her beliefs about veganism with a sincerity equal to that of traditional religious beliefs.

If there is a religious objection, the employer should discuss accommodations, which must be reasonable, but do not have to be an undue hardship. Often, it is not an undue hardship to have one unvaccinated employee. In certain lines of work, such as a medical provider working with very high-risk populations, that analysis could change. It is very fact-specific, so you will want to work with your counsel.

Alternatives to a Mandatory Flu Vaccination Policy in the Workplace

For some places of business, a mandatory flu vaccination policy may be too inflexible. There are several other ways for employers to keep workplaces healthy. First, put policies in place that promote vaccinations. The Centers for Disease Control (CDC) recommends encouraging employees to get the flu vaccine through company communications, posters, hosting clinics for employees and their families to receive free vaccines, and even developing policies that permit employees to use work time to go elsewhere to get a flu shot. Organizations should also consider other ideas like educate employees on how to prevent the spread of the flu in the workplace, offer incentives to employees who do get vaccinated, encourage employees to stay home when they are sick and seek medication right away when they have flu symptoms, advise employees that they should be fever-free for at least 24 hours before returning to work, develop flex time that allows employees to work from home when they are feeling unwell or caring for sick family members, and finally outfit the workplace in ways that reduce the spread of sicknesses with no-touch hand soap, tissues, no-touch trash cans, and hand sanitizer.

Conclusion

There are many ways to promote well-being and productivity in the workplace. While mandatory flu vaccination policies may be legal, indeed required in some professions, there are many things to consider before terminating an employee for noncompliance. Employers should consult with experienced legal counsel before firing an employee for failure to follow mandatory vaccination guidelines.

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Featured Image by Rebecca Sidebotham.