As flu season approaches, employers often ask: can we require our employees to get a flu shot? The answer? Sometimes. Although some employers, particularly in the healthcare field, require employees to get immunized, employers should beware of legal risks created by the policies mandating vaccinations for employees. If an employer mandates vaccination, an employee may have a right to an exemption from the policy based on the employee’s medical history or religious beliefs.
For example, the EEOC recently represented three employees who alleged they were terminated by a hospital for refusing to get vaccinated because being vaccinated violated their religious beliefs in violation of Title VII of the Civil Rights Act. FN 1. The employees were an intake specialist, preschool teacher, and technician, all of whom interacted with small children and other patients. The psychiatric technician asserted that the followers of her religion are “healed by plants, fruits, and grains,” while the preschool teacher believed that “our bodies are a temple and that God gave us dominion over our bodies” and injecting the flu vaccine into her body was morally wrong. The triage mental health intake specialist claimed that “injecting chemicals and diseases into her veins” was not something God intended, and was wrong. The court in this EEOC enforcement lawsuit found that the EEOC can proceed to trial and denied the hospital’s motion for summary judgment, holding that it had not shown that it had reasonably accommodated the employees’ religious objections to vaccination or that a reasonable accommodation would have caused an undue hardship for the hospital, even though the employees missed the deadline for exemption requests.
In 2013, the EEOC brought a lawsuit on behalf of hospital employees, alleging that the hospital unlawfully implemented a mandatory seasonal flu vaccination requirement for its employees, but excepted from the policy employees who received an exemption for medical or religions reasons. FN 2. Under the policy, employees who received an exemption were required to wear a face mask while having patient contact during the flu season in lieu of receiving the vaccinations, and employees who refused the vaccine but were not granted an exemption by the hospital were fired. In this case, the EEOC alleged that the hospital unlawfully denied several employees’ requests for religious exemptions from the hospital’s flu vaccination requirement, and unlawfully fired these employees when they continued to refuse the vaccine based on their religious beliefs. According to the EEOC's lawsuit, the hospital granted fourteen vaccination exemption requests based on medical reasons while denying all religion-based exemption requests. The hospital and the EEOC ultimately entered into a consent decree, where the hospital employees who refused influenza vaccines were offered re-employment and received payments totaling $300,000.00.
Further, mandatory vaccination policies may run afoul of federal and state disability laws. Under the Americans with Disabilities Act (ADA) and similar state laws, an employer must provide an accommodation for employees with disabilities that would worsen the employee’s condition or pose damage to the employee’s health – even if the employee’s condition does not qualify as a disability. In such an instance, an employer should require the employee to provide a bona fide doctor’s note that excuses the employee from having the shot.
Interactive Process for Accommodation
When an employee has an issue with a vaccine policy due to a religious concern or a disability, communication between employer and employee is as important as the employer’s ultimate decision. Employers should be prepared to engage in an individualized interactive process to evaluate requests for accommodations by listening to employees’ concerns, considering what they are requesting, and determining whether it is feasible in the workplace or would cause and undue hardship on the employer.
Even a well-meaning requirement that employees get an annual flu vaccination may run afoul of employees’ religious beliefs and conflicting health concerns. Employers considering a mandatory flu vaccination policy should plan to make exceptions for certain employees in order to comply with federal and state law.
FN1 - EEOC v. Mission Hospital, Inc., Civil Action No. 1:16-CV-00118, August 7, 2017, in the U.S. District Court for the Western District of North Carolina, Asheville Division.
FN2 - U.S. EEOC v. Saint Vincent Health Center, Civil Action No. 1:16-cv-234, Sept. 22, 2016, in U.S. District Court for the Western District of Pennsylvania, Erie Division.