What Can and Can’t You Do to Get Ready for Flu Season

By Erin Denniston Leach

As we get ready for flu season, employers are faced with the quandary of what to do when they want a healthy workplace in order to maintain productivity and morale, but still need to respect an individual employee’s beliefs about flu vaccines. Both federal and state laws impact what employers can and cannot do. One thing is clear – mandating that all employees receive a flu vaccine without exemption is not permissible. The key is that an employer may not require an employee to receive a vaccination if a sincerely held religious belief, disability, or pregnancy prevents the employee from taking the influenza vaccine unless an undue hardship would result. But is that the only restriction? Not necessarily.

On August 7, 2017, a North Carolina federal court denied an employer’s motion for summary judgment on a religious discrimination claim where it had a policy that offered employees the opportunity to request an accommodation to exempt them from the mandatory vaccination requirement by a certain date or be vaccinated by a later date and the plaintiffs were terminated after doing neither. Accordingly, offering the opportunity to request an accommodation from a mandatory vaccination policy may not be enough.

The EEOC’s guidance on the issue is that employers should encourage, but not require, flu shots. However, in many industries, such as healthcare providers, this advice is contrary to advice from other government agencies including the Center for Disease Control and even some state laws that have imposed flu vaccination requirements for employees in certain industries. 

So what should an employer do? If the employer is not in an industry with mandatory vaccination requirements, the company should consider encouraging but not requiring vaccination and making it as easy as possible for employees to receive the vaccination. For example, a company may want to consider having a healthcare professional come into the office to provide flu vaccinations to those that want to receive it or even offering such vaccines at no cost. If the company is in an industry with mandatory vaccination requirements, the company may wish to have a process in place for employees to make accommodation requests and engage in the interactive process with the employee to explore accommodations.