Flu Season is Coming, but Can I Require My Employees to Vaccinate?

As flu season approaches, employers are searching for answers on how to deal with viruses spreading throughout the workplace. The question is, “Can I mandate employees receive the flu vaccine?” Are there standards in place? How does COVID-19 come into play? Some concerns to be mindful of and risks associated with the behavior are as follows:

• Claims of Violation of Privacy – Check if your state has a state-law right to privacy in the workplace. Maine does not have a statute that provides employees with statutory privacy protections, but other states do, and as an employer you are going to want to check each of the states in which the organization currently has employees to determine the breadth of those statutes and whether they would restrict this type of behavior.
• EEOC Guidance for Title VII/ADA – In the EEOC guidance for pandemic preparation, it notes that “An employee may be entitled to an exemption from a mandatory vaccination requirement based on an Americans with Disabilities (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). Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine, rather than requiring them to take it. Employers in the healthcare industry, however, may believe that failure to obtain the vaccine could adversely affect the safety and health of patients. While the above analysis continues to apply, employers in the health-care industry likely have a stronger argument that they cannot accommodate the requested accommodation. In all cases, however, a case-by-case analysis will need to occur. *As of the date this document is being issued, there is no vaccine available for COVID-19. The EEOC has provided guidance on requiring a vaccine during a pandemic. This guidance, however, is regarding only a pandemic and accordingly would be applicable to a COVID-19 vaccine, and not the flu vaccine.
• General ADA/MHRA Disability Standard – Under the ADA and MHRA (Maine Human Rights Act), an argument can be made that a required vaccine would be a medical examination/testing of a current employee. Under the ADA, in order to have a medical examination of a current employee, you must show the examination is job-related and consistent with business necessity. Courts have held that “job-related and consistent with business necessity is when an employer reasonably believes, based on objective evidence, that either: an employee’s ability to perform essential job functions is impaired by a medical condition; or an employee poses a direct threat due to a medical condition.” Here, the normal seasonal flu does not meet the standard of direct threat (which COVID-19 does as set forth by the EEOC), so you would have to show that an employee’s ability to perform the essential job functions are at issue. This normally only applies to individuals who are in the health care industry who may be in contact with the flu virus or dealing with people with weakened immune systems.
• National Labor Relations Act (NLRA) Attempt to Organize – In many situations after a mandatory vaccination policy is announced, there is a group of people who respond with an attempt to organize to limit the applicability of the policy and/or try to change the policy. This would be concerted activity protected by the NLRA and the organization should be mindful of the potential protected conduct.
• Workers’ Compensation – If an organization were to require a vaccine, any employee who suffers a complication from the vaccine (death is highly unlikely, but there can be other side effects), may be able to assert that the complications and any time away from work resulting from the complications is covered by workers’ compensation.

Employer should keep all of the above considerations in mind when determining whether a mandatory flu vaccine policy makes sense for the organizations. As opposed to mandating vaccines, employers may want to consider recommending that all employees receive the vaccine and focus language on the effect their absence has on the team they work with and production scheduling.

Whether the flu vaccine is mandated or recommended, should employers be offering the ability to obtain a flu shot at work, the employer should keep the following in mind:

• Protect identities of individuals receiving the vaccination and keep private the listing of employee’s names.
• Provide a location offering some degree of privacy to those receiving the vaccine.
• Additionally, the CDC has issued a helpful packet of documents to keep in mind and consider as you move through the process.

For further questions on vaccines in the workplace, contact a member of Verrill’s Employment and Labor practice group.