As winter approaches and the pandemic continues, many employers are considering mandating that their employees get vaccinated (most commonly for the flu, and for COVID-19, if/when the vaccine becomes available). Aside from certain industries (like healthcare in some states) where a flu vaccine may be required by governing agencies or laws, we are often asked whether a business can, or even should, require employees to get a flu shot, and eventually the COVID-19 vaccine when available. Below, we discuss the legal nuances associated with such a mandate, and things to consider before deciding to implement a mandatory vaccination policy.
Neither government agencies nor the courts have yet addressed whether a COVID-19 vaccination mandate at the workplace would be lawful. Therefore, the discussion here largely relates to flu vaccination issues, which may be instructive for when a COVID-19 vaccine becomes available. We do note that the circumstances, law, and guidance relating to a COVID-19 vaccine may be different than those that apply to flu vaccination and could compel a different analysis.
Is a Mandatory Flu Vaccination Policy Legally Permissible? It CAN be.
Absent a state or local law to the contrary, private employers are likely not prohibited from requiring employees to get a flu shot to keep the employees and the workplace safe. But as with most legal questions, there are some stipulations and limitations.
The federal Occupational Safety and Health Act (OSHA) requires an employer to maintain a workplace that is free of recognized hazards. Seemingly, this would permit an employer to require the flu vaccine to help protect the workplace. However, the Americans with Disabilities Act (ADA) limits an employer’s ability to make medical-related inquires and/or conduct medical examinations of employees — except in limited scenarios. Specifically, the medical exam or inquiry would need to be job-related and consistent with business necessity. This “necessity” would need to be based on a reasonable belief that an employee’s ability to perform essential job functions will be impaired by a medical condition, or the medical condition will pose a significant risk of substantial harm to workplace health or safety. The employer’s belief must be based on factual information, not just subjective perceptions or irrational fears of the medical condition. Essentially, there has to be a specific and reasonable basis to believe that requiring a flu vaccine is necessary to keep the workplace safe from significant risks and/or to permit employees to be able to perform their jobs.
For these reasons, in industries where employees serve and interact with populations who are more susceptible to contracting the flu (such as healthcare or early education), employers are likely permitted to (or required to in some states) require flu vaccination. Employers outside of these industries, however, face the challenge to articulate the basis (other than the general intention to keep the workplace safe) of the need for such a policy.
Do Employers Have to Permit Exceptions to Mandatory Vaccination Policies?
Even if a mandatory vaccination policy is permissible for an employer using the above criteria, employees may request (and must be permitted to request) reasonable accommodation from the mandatory flu shot requirements based on a disability under the ADA or applicable state laws. Similarly, under Title VII of the Civil Rights Act of 1964 and its applicable state equivalents, an employer must consider an employee’s accommodation request based on a sincerely held religious belief, practice, or observance (which, under relevant guidance, can be fairly broad and includes more than the traditional organized religions).
Upon receiving an accommodation request to be relieved of a vaccination requirement due to disability or religious-related reasons, an employer must engage in an interactive process with the employee to determine if it can provide the employee with a reasonable accommodation (barring an undue hardship on the employer). An example may be asking that specific employee to wear a mask, follow distancing rules, or take other specific precautions. As with all accommodation requests, employers need to make the determination on a case-by-case basis.
A Safer Option?
Interestingly, the federal agency that enforces federal anti-discrimination laws, the Equal Employment Opportunity Commission’s (EEOC), does not explicitly prohibit mandatory vaccination policies, but instead recommends that employers should consider encouraging employees to get the flu vaccine. To that end, the CDC has provided guidance on promoting vaccination in the workplace and has highlighted the importance to receive a flu vaccination for this flu season in particular during the ongoing pandemic. (here).
Is A Mandatory Vaccination Policy the Best Option for Your Business?
As evident from the analysis above, implementing a mandatory vaccine policy, even where legally permissible, may not be the “right” option for some companies. Doing so could impose administrative burdens on business, as well as some legal risks. There are also practical and logistical considerations, such as who would pay for the vaccine, how the information will be collected and monitored, and whether a particular clinic should be designated for employees to receive their vaccine. A mandatory requirement may also stir up other liability concerns as employees may fall ill or have an adverse reaction after receiving the mandated vaccine.
As flu season is here, the pandemic rages on, and a COVID-19 vaccine is seemingly in the foreseeable future, employers should, at the very least, consider encouraging their workforce to obtain flu vaccines. Companies considering mandatory inoculation policies (either for the flu or the COVID-19 vaccine should it become available) should carefully analyze both the legal and operational elements of such a policy, and ensure it complies with any new or updated guidance and law on these complicated issues.
If you have any questions on this topic, please contact the authors, Zev Singer and Keli Liu, or your personal Greenwald Doherty attorney contact.