Flu epidemics occur each year throughout the United States. The Center for Disease Control and Prevention estimates that flu activity most commonly peaks in January or February; however, seasonal flu activity can begin as early as October and continue to occur as late as May. The CDC indicates that, on average, 5% to 20% of the United States population gets the flu, and more than 200,000 people are hospitalized from seasonal flu-related complications. Because the flu impacts employee attendance and productivity, employers are beginning to require their employees to become vaccinated.
According to the Equal Employment Opportunity Commission (“EEOC”), employers can compel their employees to submit to the influenza vaccine, subject to some important exceptions. Specifically, private employers can require flu shots so long as they are willing to accommodate employees’ disabilities and religious beliefs:
An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, 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 (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
Employers with collective bargaining agreements should also be mindful that mandatory flu shots may be considered a bargained-for term of employer. An experienced employment attorney can be a great resource for both employers and employees in evaluating the legal ramifications of a mandatory vaccination policy.
By: Sean P. Sheridan