Many employers, particularly those in healthcare and related industries, previously have considered whether to require their employees to receive the seasonal flu vaccine. This year, there has been a renewed focus on this issue, as many fear that flu season will intensify the ongoing public health emergency caused by COVID-19. Additionally, the issue of mandatory vaccinations in the workplace is becoming increasingly relevant as medical experts in the U.S. anticipate that a COVID-19 vaccine will be available for distribution to the general public in soon. As a result, employers once again are contemplating whether to require their employees to receive the flu vaccine – and potentially a forthcoming COVID-19 vaccine – as a condition of employment.
The Centers for Disease Control and Prevention has a dedicated section on its website concerning flu vaccine information for healthcare workers. Currently, the agency does not recommend that employers require employees to get the flu vaccine. Instead, it suggests that employers encourage vaccination through hosting on-site clinics and providing incentives to employees. Likewise, the Equal Employment Opportunity Commission states that employers should encourage vaccination but avoid mandating it.
Nonetheless, healthcare employers have discretion to implement a mandatory flu vaccination policy for certain positions. Courts considering this issue consistently have determined that employers can require employees working with immunocompromised populations such as sick people, the elderly and young children to receive the seasonal flu vaccine. This requirement, however, in not absolute. In accordance with the Americans with Disabilities Act, or ADA, employers may be prohibited from requiring employees who have a disability that prevents them from taking the flu vaccine to get the vaccine. Similarly, pursuant to Title VII of the Civil Rights Act of 1964, employers may be prohibited from requiring employees whose sincerely held religious beliefs, practices or observances prevent them from taking the flu vaccine from getting the annual shot.
Under both the ADA and Title VII, covered employees can request a “reasonable accommodation” as an exception to an employer’s mandatory flu vaccination policy. For employers in the healthcare industry, providing a reasonable accommodation may mean reassigning employees so they no longer are in contact with medically vulnerable populations. An employer is legally obligated to provide a reasonable accommodation unless it can show that the accommodation would impose an “undue hardship.”
A reasonable accommodation does not have to be an employee’s proposed or preferred accommodation. Employers, however, should engage in an interactive process with employees to determine whether an accommodation exists that works for everyone. Employers should seek legal counsel to discuss options and determine the extent of their obligations under the law.
To date, neither the CDC nor the EEOC have issued guidance regarding whether employers will be able to require employees to receive a COVID-19 vaccine. Given that COVID-19 has been declared a pandemic and has significantly disrupted the U.S. economy, we anticipate that guidance will be issued in the coming months. In the meantime, guidelines related to mandating the flu vaccine may be instructive to forward-looking employers who already are considering the effects of a COVID-19 vaccine and how such a vaccine will impact their workforce and operations.
Patricia Goodson and James Bobbitt are labor and employment attorneys in the Raleigh, NC, office of Brooks Pierce.