Thursday, November 10, 2016

Can You Require Your Employees to Get Flu Shots?

As we move deeper into November, we are on the cusp of the dreaded cold and flu season. Nasty strains of these viruses have been known to decimate workplaces, virtually shutting down operations for days at a time. One possible defense to this disruption is to require your employees to get flu shots. Not only would such a requirement increase productivity, but it would improve employee health and the health of those clients with whom the employees interact. Sounds like a win-win, right? Is such a requirement lawful?

This question is being resolved in a Pennsylvania court, in which the Equal Employment Opportunity Commission, the agency in charge of enforcing federal employment laws, has filed a lawsuit against a hospital that fired an employee who refused to receive flu shots based on religious objections.

The EEOC has posted a Q&A on its website discussing whether it would be lawful for an employer to require employees to receive a flu shot, and wrote that under Title VII, “once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII.” The EEOC also noted that an employee may be exempted from receiving a flu shot based on a disability recognized under the Americans with Disabilities Act (ADA).

This suggests that the EEOC would find a mandatory flu shot requirement to be lawful, as long as employers accommodated any objections due to religious beliefs or disabilities. In the Pennsylvania case, the EEOC is alleging that the employer failed to accommodate the religious beliefs of employees who were opposed to receiving the shot based on these beliefs.

One of the employees, who was a nurse, was required to receive a vaccination if she wanted to work in the OB/GYN department of the hospital. When she refused to receive the vaccine, the hospital attempted to accommodate her religious concerns, which Title VII requires employers to do, and allowed her to work in another department if she wore a surgical mask. She refused to do this, which caused the hospital to fire her. The EEOC argues that this violated Title VII, alleging that the hospital did not make a sufficient accommodation for her religious beliefs.

Whether the EEOC will be successful will largely turn on the facts of the case. Important questions will be to what extent the hospital went to accommodate the employees’ religious objections, whether the employees’ religious objections were “sincerely held,” and whether the employees provided proof of these beliefs to the hospital.

It is important to remember that although Title VII requires employers to accommodate their employees’ “sincerely-held” religious beliefs, if this accommodation imposes an undue hardship on the employer, it does not have to provide the accommodation. The hardship does not have to be as great as it is for the Americans with Disabilities Act.

So, the takeaway from this case is that employers can probably require employees to receive vaccinations. Trouble only arises if the employee has a religious or a health-related reason not to receive the vaccine. In such a situation, an employer may want to contact an experienced attorney for advice.