Employers Need to Be Careful When It Comes to Flu Vaccinations

As fall and winter approach, it means that cases of seasonal flu will increase. This, in addition to the continuing COVID-19 pandemic, might cause concern for employers everywhere. Some employers might even consider requiring employee flu vaccinations as a way to protect workers from the contagious illness. According to the National Law Review, however, employers need to be cautious when implementing any mandatory vaccination policy.

 OSHA’s General Duty Clause

Under the Occupational Safety and Health Administration’s (OSHA’s) General Duty Clause, all employers need to provide a hazard-free workplace. To comply, employers have to establish job-related workplace safety policies and requirements based on business necessity. For example, OSHA recently released new guidance on returning to work during the coronavirus pandemic. Employers should use that guidance and adjust it based on their specific workplace needs. When it comes to implementing policies that mandate vaccinations, usually it depends on the employer’s industry or location. Policies mandating vaccinations are more likely to be appropriate for the healthcare industry. Other industries involving individuals who are at a high risk of flu complications could have such a policy as well. Accordingly, numerous courts in different jurisdictions have labeled healthcare workers as required to receive vaccinations. This, as mentioned earlier, is permissible because the requirement is job-related and consistent with business necessity.

 Mandatory Vaccinations and the Equal Employment Opportunity Commission

Employers need to remember, however, that some employees may be considered exempt from complying with a mandatory vaccine requirement. The U.S. Equal Employment Opportunity Commission (EEOC) has identified situations when an employee can refuse to get vaccinated. Two of those possible exemptions fall under the Americans with Disabilities Act (ADA):

• If an employee has a qualifying disability under the ADA. For example, people with life-threatening allergies to the vaccine or other disorders should not receive a flu vaccine. The Centers for Disease Control has released guidance on individuals who should not get specific vaccines.
• Pregnant employees, as pregnancy and pregnancy-related impairments qualify as disabilities.

Similarly, Title VII of the Civil Rights Act of 1964 gives an employee the opportunity to refuse workplace required vaccinations. If the employee objects based on a sincerely held religious belief, practice, or observance, they are exempt getting the vaccine.

Employer Takeaways

In response to situations of general pandemic influenza, the EEOC created guidance in 2009 addressing non-healthcare-related employers. An updated version, released in March 2020, addressed the spread of the global COVID-19 pandemic. In the document, the EEOC recommends that in general “ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” In addition, numerous states have passed laws regarding the legality of workplace vaccination policies. Due to fines and lawsuits, incorrectly creating and enforcing a mandatory vaccine policy can become a costly issue. Before instituting one in your workplace, a legal expert should review your mandatory vaccine policy to ensure it is appropriate and legally complaint.