Each year, December not only marks the arrival of the holiday season, but also the beginning of peak flu season. Seasonal flu is not only unpleasant for individuals and employees who have to suffer through the virus-induced misery, but it also represents an unpleasant reality for employers – it’s expensive. According to the Centers for Disease Control and Prevention, as a result of the flu, U.S. workers annually lose up to 111 million workdays with an estimated value of $7 billion in sick days and lost productivity. It’s no wonder that prudent employers may consider measures such as mandatory flu shots to minimize the flu’s impact on its own workforce.
In general, policies mandating flu vaccinations as a condition of employment are lawful and are not a new concept, particularly in the health care industry where health care employers have customarily implemented the mandate for obvious patient-safety related reasons. Nonetheless, employers considering or that have already implemented mandatory flu shots must make sure to structure and apply their policies to allow for exceptions to avoid liability under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”), in addition to any other analogous state and local antidiscrimination provisions.
For example, employers may be obligated to reasonably accommodate an employee’s religious belief prohibiting flu shots provided that such belief is sincerely held and that an accommodation does not present an undue burden on the employer. Similarly, employees may also need to be excused from receiving a flu shot as an accommodation under the ADA if the employee demonstrates that the vaccine would have, or poses a sufficient risk of an adverse interaction with an existing disability.
The difficulty for employers, however, is understanding not only when a duty to accommodate attaches, but also the scope of that duty, as Title VII’s and the ADA’s reasonableness determinations are largely dependent on factual circumstances. Thus, for example, while a reasonable accommodation in the health care industry may typically include excusing the employee from the mandate but requiring the employee to wear protective equipment, such as a medical mask or gloves, wearing a mask in other professions may not be practical or advisable. Moreover, whether an accommodation is reasonable may differ for employers in the same industry, or even for positions with the same employer, meaning that each employer seeking to implement a vaccination policy must individually assess potential accommodation options and their effectiveness.
While prudent employers should consider taking proactive steps to curtail the negative effects associated with the flu, employers must remain mindful of their obligations under federal, state, and local employment laws. Accordingly, employers considering implementing vaccination policies are highly encouraged to seek counsel from employment attorneys well-versed in employment law to ensure compliance with current legal authority.