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Ask Leslie: Can We Require Our Employees To Get A Flu Shot?

By Leslie Zieren, The McCalmon Group, Inc.

Dear Leslie:

I just read the Centers for Disease Control and Prevention's announcement that the flu killed more than 80,000 people last winter, making it the deadliest season since 1976. We want to offer flu shots onsite, and we want everyone to either get one or bring documentation showing they received one from their physician or pharmacy. Can we do this?

Signed: Fran


Dear Fran:

The main equal employment issue that arises regarding flu shots is having employees who refuse to get the immunization because of religious beliefs.

If you have 15 or more employees, you are prohibited under Title VII of the Civil Rights Act of 1964, from discriminating on the basis of religion. If you have a mandatory flu shot policy and an employee requests he or she be accommodated on the basis of religion with an exemption from the policy, you must grant it unless it creates an undue hardship. In addition, some states have anti-discrimination provisions that apply to workplaces with fewer employees, so be sure to check with your local legal counsel.

"Religion" is interpreted quite broadly and includes non-theistic or ethical beliefs that are sincerely-held, as well as new, uncommon, or informal religious beliefs, no matter how unreasonable they may seem. For that matter, atheism is also protected under Title VII.

Some courts have ruled in favor of mandatory flu shot policies without a religious accommodation where the employee failed to prove that his or her objection was "religious" rather than a mere personal anti-vaccination principle. One circuit court upheld an employer's policy and rejected the objections to the flu shot of a hospital employee, who argued the shot "might harm his body" and would "violate his conscience as to right and wrong". The court stated the employee's reasons did not address "fundamental and ultimate questions having to do with deep and imponderable matters"; his reason was not part of a "comprehensive belief system"; and his beliefs were not "manifested in formal and external signs" such as services, structure, or other such manifestations associated with traditional religions. This decision is in line with the EEOC's position that it is not enough that a belief is a social or economic philosophy or a mere personal preference.

If an employee makes such a request, it is important to engage in an interactive process and conversation with the employee to learn as many details as you can about the basis of the request. In a health care organization, for example, or an organization that works with the elderly, children, or others who have health challenges, perhaps requiring the employee to wear a mask at all times would be a reasonable accommodation. And, perhaps reassignment of the employee to a temporary position away from those who could be harmed by catching the flu could suffice.

Some health care employers have successfully claimed that having an unvaccinated employee who can transmit flu to a vulnerable patient population is an undue hardship and that no accommodation is reasonable. Every situation and request for an accommodation should be managed on a case-by-case basis, and this situation is no exception.

Some employees could raise the Americans with Disabilities Act or the Pregnancy Discrimination Act as a reason for an exemption accommodation. These should be considered on a case-by-case basis, too.

Check with your legal counsel because some state legislatures are considering passing mandatory vaccination laws, while others are considering laws that prohibit any type of discrimination against those who refuse a vaccination.

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

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