Can your employer force you to get a flu shot?

By Mary Fetzer

As the new year begins, we find ourselves in the peak of flu season, which tends to start around late October and run strong through February. The flu can be nasty, as anyone who’s suffered through its aches, fever, and fatigue can attest. Small wonder it’s a major cause of employee absences, which are 32 percent higher in the United States during the flu season than the rest of the year.

This loss of productivity has prompted businesses to encourage their employees to get an annual flu shot; many employers even offer free immunizations on premise. But some companies are attempting to take that a step further, instituting mandatory vaccination policies in an effort to reduce sick days among staff.

Can an employer force you to get the flu shot? Can you say no without risking your job?

Healthcare workers

Healthcare workers are commonly required by their employer to get a flu shot. The purpose of these mandatory immunizations is evident: to protect patients from infected employees, and to protect employees from infected patients.

Laws regarding mandatory flu shots for healthcare workers vary from state to state. In Alabama, for example, hospitals are required to establish vaccination requirements – annual flu shots, at a minimum. In contrast, no regulation exists regarding flu vaccines for hospital employees in the District of Columbia. Rather, the statutes refer generally to “communicable diseases.”

Meanwhile, in Illinois, healthcare employees are afforded the opportunity to receive influenza vaccines during flu season if the vaccine is available to them. If they decline, then they must sign a release and certify that they have been educated about the benefits of vaccines.

When employees resist

Not every employee, even within the healthcare industry, is keen on the idea of flu vaccines despite the protection they provide.

Leontine Robinson was fired from Children’s Hospital Boston when, citing her religion, she refused a flu vaccine. Robinson, an emergency room administrator, had direct patient contact as a job responsibility. Following her refusal to be immunized, she was given time to look for a position in a non-patient care area but was unsuccessful. She was then fired and ended up suing the hospital for religious discrimination.

The hospital, which does not permit religious exemptions, won the suit. The court held that the employer had accommodated Robinson by trying to help her find another position but was not obligated to create a position for her.

In a similar case, Paul Fallon sued Mercy Catholic Medical Center for religious discrimination. Fallon refused the flu vaccine by requesting a religious exemption based on his moral conscience against vaccines. The court found that the employee’s conscience did not qualify as a religious belief and found for the hospital.

Despite those rulings, the U.S. Equal Employment Opportunity Commission (EEOC) insists that mandatory flu vaccination programs—even for healthcare workers—violate Title VII of the Civil Rights Act of 1964 by not accommodating the religious beliefs of employees.

In June 2016, the EEOC filed suit against Baystate Medical Center in Springfield, Massachusetts, charging the employer for punishing a human resources staffer for her religious beliefs. Baystate requires all employees to receive an annual flu vaccination. Employees may request an exemption based on religious beliefs, if they agree to wear a mask while on the job.

Stephanie Clark, a recruiter for Baystate, declined the flu shot because of her religious beliefs and opted to wear the mask. However, job applicants complained that they were unable to understand Clark when she was speaking with the mask on. When she requested an alternative accommodation that would enable her to honor her religious beliefs, she was placed on unpaid leave and eventually terminated. The case has not yet been decided.

Beyond religious exemptions

Influenza vaccinations are not suitable for everyone. The Centers for Disease Control warn that individuals who have a life-threatening allergy to some component of the vaccine should avoid the shot, as should people who have had Guillain-Barre Syndrome. Such employees are exempt from mandatory flu shots, provided they can document their medical condition.

That said, few people fall into this category. “Hardly anyone has a real medical reason to avoid an influenza shot,” says science writer Laurie Endicott Thomas, author of No More Measles! The Truth about Vaccines and Your Health. “It provides at least partial protection against an illness that is not only potentially serious, but very common.”

“You may want to postpone your flu shot if you have a cold or some other illness,” she adds, “but you should get the shot when you feel better.”

Making it mandatory is legal. Sort of.

Employers may have the best interests of employees, patients, clients, and customers in mind, but that doesn’t mean they can simply mandate staff to get a flu shot. Mandatory policies are, for the most part, legal if they allow for exemptions.

• Employees must have the option to refuse for medical reasons (employers can demand medical proof that the employee cannot be vaccinated).
• Employers must have a process that permits employees to opt out for religious reasons. An employee may be required to prove that he/she belongs to a religious organization and provide documentation from clergy to confirm the religious belief opposing vaccines.
• Employers may set a deadline (such as a date prior to flu season) by which employees may request an exemption.
• Employers must determine what types of accommodations (wearing a mask, being reassigned to a different position) will be made for those who will not or cannot be vaccinated. Legal precedents are just now evolving.

Reducing employee sick time

Meanwhile, employers can seek other ways to keep employee sick time to a minimum. Registered nurse Tiana Morano says it’s common for employers to encourage good health behaviors among staff. “There are incentive programs that facilities can institute to keep to improve or maintain health,” she says.

An employer might offer to pay the cost of healthcare coverage for employees who use an onsite exercise facility, attend employee health fairs, or document weight loss. No matter how outstanding the incentive, however, the employer may not mandate participation.

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