Thinking About Mandating Flu Shots For Your Employees? You Need To Read This First

The concern is legitimate: a 32 percent increase in employee absences occurs during flu season compared to the rest of the year, causing a national economic impact of $87 billion…

By Velissa R. Chapa

Towards the end of every year, employers must face the possibility that their employees may fall victims to the flu. The flu season, which starts in October and concludes in March, can take quite a toll on a company’s business.

The concern is legitimate: a 32 percent increase in employee absences occurs during flu season compared to the rest of the year, causing a national economic impact of $87 billion (see https://www.decodedscience.org/ the-economic-costs-of-the-fluin-the-united-states/25957/2).

For comparison, this impact is the same as if 48 hurricanes hit the United States in a year. Both before and during flu season, employers try to find ways to protect their employees from illness to keep costs down and operations running.

One consideration is to require employees to get flu shots at the risk of termination. While this may sound like an excellent idea in theory, having such a requirement can result in serious consequences for employers.

To put it simply, most employers should avoid mandating flu shots for employees. Although Texas employees are generally at-will, various applicable laws could easily turn a well-meaning policy into a violation of law. Here are the facts.

Unprotected Reasons for Refusal

There are several reasons why employees may refuse to get a flu shot. Some of these reasons are moral or philosophical in nature: people have a right to control what goes into their bodies, and nobody should have to accept medical intervention against his or her will.

In addition, debates about the vaccination’s lack of effectiveness suggest that the benefits of the flu vaccine are not what people think. Per the Center for Disease Control (CDC), the 2016-2017 flu vaccine was only 48% effective, and flu activity remains elevated overall (see https://www.cdc.gov/mmwr/ volumes/66/wr/mm6606a3.htm).

In the workplace, however, these arguments are not legally-protected reasons for refusing a flu shot. According to the Equal Employment Opportunity Commission (EEOC), “social, political, or economic philosophies, as well as mere personal preferences, are not . . . protected” by law.

This conclusion is supported by Fallon v. Mercy Catholic Medical Center of Southern Pennsylvania, No. 16-3573 (3d Cir. Dec. 14, 2017), where it was determined that an employee’s conscience alone did not qualify as a legally-protected religious belief.

Protected Reasons for Refusal

However, there are reasons for refusing a flu shot that are protected under Title VII of the Civil Rights Act of 1964 (Title VII), which applies to employers with 15 or more employees.

In short, Title VII prohibits employment discrimination based on religion or a medical contraindication. Therefore, employees may refuse flu vaccinations if such a requirement conflicts with their sincerely held religious beliefs.

For more information on sincerely-held religious beliefs and Title VII, visit the following link: https://www.eeoc.gov/eeoc/foia/letters/2012/ religious_accommodation.html.

Employees may also refuse flu shots for medical reasons, such as pregnancy, severe adverse effects, or a life-threatening allergy to the shot. In many cases, these medical concerns are also afforded protection under Title VII.

Because religion and medical contraindications as reasons for refusal are protected by law, the EEOC considers blanket vaccination requirements to violate Title VII.

Therefore, if an employee refuses a flu shot for either of these reasons, employers should allow for an exemption from a mandatory vaccination requirement and provide a reasonable accommodation, unless doing so would pose an undue hardship.

For further guidance on appropriate medical inquiries, whether the employee’s lack of vaccination would pose a “direct threat” to the workplace, reasonable accommodation, undue hardship, and practices for preparedness, see the EEOC’s guidance on pandemic preparedness: https://www.eeoc.gov/facts/pandemic_flu.html.

Employers should note that reasonable accommodation under Title VII does not require employers to create new positions for employees who pose a direct threat to the workplace because they refused the flu vaccine (see https://www.leagle.com/decision/ infdco20160406a49).

Less Than 15 Employees

Businesses with less than 15 employees are not covered under Title VII. Therefore, there is an argument that employers in this category might be able to impose a blanket requirement.

However, this is not a best practice. Employers that offer Workers’ Compensation could have issues if the employee is injured due to receiving the vaccine. In addition, if the employee is terminated for refusal and files for unemployment benefits, employers would risk losing the claim.

Such a requirement could also result in negative press for the employer, and depending on the circumstances, employee discussions on this issue could be protected under the National Labor Relations Act.

Further, all employers—regardless of size—that mandate flu shots and do not pay for the associated costs, may risk a racial discrimination lawsuit under 42 U.S.C. §1981, as such a practice may have a disparate impact on minorities (see https://www.gpo.gov/fdsys/ pkg/USCODE-2009-title42/pdf/ USCODE-2009-title42-chap21- subchapI-sec1981.pdf).

Employers should also pay for the vaccination if there is a risk that not doing so would take the employee below minimum wage.

Employers in the Healthcare Industry

Hundreds of healthcare employers have mandated employee flu vaccinations, prioritizing patient safety over employee concerns.

These employers believe that a special exception exists for having a blanket policy on flu shots because of the heightened responsibility of maintaining the health and wellbeing of their clients.

However, there is no such exception, and healthcare employers fall under the same analysis as above. In 2016, in the case EEOC v. Saint Vincent Health Center, Civil Action No. 1:16-cv-234 (Sept. 22,2016), the employer paid $300,000 in back pay and compensatory damages to six employees whose religious exemption requests were denied.

The primary lessons from this case include that:

1) employers must notify employees of their right to request an exemption and establish appropriate procedures;

2) employers cannot reject a religious accommodation simply because they do not agree with the religion; and

3) employers cannot require exemption requests to be certified by clergy members (see https://www.eeoc.gov/eeoc/newsroom/release/12-23-16.cfm).

The ultimate lesson here is that being in the healthcare industry does not, by itself, relieve employers from their obligations under Title VII.

If employers do have a mandate, they should make the exemptions clear in policy, create a process for opting out, and only apply the policy towards employees who regularly interact with patients.

Reasonably accommodate if an exemption is requested (e.g.: surgical masks or temporary reassignment). Do not retaliate; the accommodations must be for legitimate reasons. Remember: each case stands alone.

Options

Although it is not recommended that employers mandate employee flu shots, employers can encourage workers to do so. Employers could start with the educational component: train managers, remind employees that flu season is approaching, and start an early campaign to educate the workforce.

The CDC provides printable information flyers for free, available here: https://www.cdc.gov/ flu/resource-center/freeresources/ print/index.htm. Employers may address prevention, good habits, and encourage workers to stay home if they feel ill.

Employers may also establish mandatory infection control practices to reduce the chances that employees fall ill (e.g.: require regular hand washing and address proper coughing/sneezing etiquette).

Employers may also consider offering free flu shots or reimbursements for the cost of the shot (the average cost is $35). In fact, on-site vaccinations during work hours, or paid time off, is permitted.

The CDC even offers a checklist for hosting a flu vaccination clinic: https://www.cdc.gov/flu/pdf/ business/toolkit_seasonal_flu_for_ businesses_and_employers.pdf.

In addition, employers may provide protective equipment (such as masks or gloves), tissues, and free hand sanitizers in high-traffic areas. For prevention guidance, promotional tools, and resources for vaccination clinics, view this guidance from the CDC: https://www.cdc.gov/flu/ business/index.htm.

Conclusion Due to the risks involved, employers should avoid mandating flu shots for employees. Instead, they should simply encourage employees to do so.

For those employers in the healthcare industry, a mandatory vaccination requirement should follow the above guidance and allow for religious and medical exemptions.

Employers in this situation should seek a qualified attorney of their choosing to assist in the development and enforcement of such a mandate.

This article was originally published by the Texas Workforce Commission.