[co-author: Kate Mize, Law Clerk]
The Centers for Disease Control and Prevention recently reported the start of the most severe flu season in more than a decade, prompting employers of all kinds to decide whether they should require flu shots for their workforce. Flu season typically runs between October and May with a peak in January and February, but a surprisingly high number of flu-related infections, hospitalizations and deaths emerging in late August caught the attention of employers. And despite the CDC’s threat and strong encouragement to inoculate against influenza in recent months, the number of influenza vaccines administered across the country is lagging at this stage of the season. Even outside of the healthcare industry, where mandatory annual flu shots are standard practice, some employers already facing staffing shortages may be tempted to mandate the flu shot to prevent outbreaks and maintain necessary staffing levels. . What are the two main legal and practical considerations that you should take into account before making this determination?
Setting the stage: the law is nuanced
In a “post-pandemic” workplace where precautionary measures have become familiar, controversial mandatory vaccinations continue to represent a double-edged sword in employers’ efforts to maximize workplace safety. In fact, the analytical framework for influenza vaccines initially guided the discussion on whether the private sector employer could require employees to receive expedited COVID-19 vaccinations.
Federal law allows most private employers to require flu shots. The Occupational Safety and Health Administration (OSHA), for example, allows mandates. After the 2009 influenza A (H1N1) pandemic raised concerns about a more intense seasonal influenza outbreak, the agency released guidance allowing employers to require influenza vaccinations. However, “employees must be properly informed about the benefits of vaccinations.”
Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) comment reveals a strong directive for to encourage rather than require to them. These two approaches set the stage for your workplace decision.
1. Assess and handle accommodation requests on an individual basis
The EEOC and the courts have repeatedly emphasized that some employees may be legally entitled to accommodations because of medical conditions or sincere religious beliefs that preclude their inoculation. Legal claims for noncompliance are currently numerous, requiring employers to overcome these challenging legal hurdles. The same goes for mandatory flu shots.
When dealing with requests for medical or religious accommodations of masking, the same analysis applies. You must evaluate all requests individually to determine whether the proposed accommodation would allow the employee to perform all essential functions of his or her job without creating an undue risk of harm or imposing an undue hardship on his or her workplace.
Please note, however, that different state laws may affect the legal analysis. Although several states have limited (or even banned) mandatory COVID-19 vaccinations, state laws restricting mandatory flu shots are much less common.
2. Although flu shots are mandatory Legalthey may not be Right For your workplace
As employers continue to recover from the ravages of the pandemic, the biggest challenge for many has been finding and retaining qualified workers. This challenge continues. However, experience has shown that a segment of the majority of the workforce, varying by industry and location, will oppose any type of mandatory vaccination. Any employer considering mandates should weigh the potential risk of losing (or furloughing) employees against the benefits of requiring flu shots, especially where flu shots were not previously required.
This issue should be evaluated based on the circumstances and workforce of each employer. Even though flu shots have a longer proven track record than COVID-19 vaccines, the mandates are almost certain to generate some level of pushback. If you want to avoid that rejection and feel you can get by without a flu shot mandate, consider other alternatives.
- Many employers now have experience with virus outbreaks and have therefore refined their approach to responding to objections and requests for accommodations. You are now well versed in alternative safety measures to prevent the spread of viruses, and you may want to use this knowledge to good effect when fighting the flu this season. You could consider reintroducing measures like wearing masks, social distancing, and providing antibacterial lotions in the workplace.
- Also, consider a temporary return to the virtual workplace. After all, employers and employees alike are now adept at work-from-home or hybrid models.
- Our recent experience has also shown that education and incentives are effective tools to encourage workers to get vaccinated.
However, there is no single solution to employee hesitation. In short, these scenarios can be complicated and will demand individualized attention. Therefore, before implementing flu vaccine mandates, consider all of these variables in light of the risks you want to mitigate, as well as the makeup and experiences of your individual workplace.