Flu season is here, the pandemic rages on, and thankfully, a COVID-19 vaccine is seemingly in the foreseeable future. Many employers are considering mandating that their employees get vaccinated (most commonly for the flu or for COVID-19 if/when a vaccine becomes available). Aside from certain industries (like healthcare in some states) where a flu vaccine may be required by law, I am often asked whether a business can, or even should, require employees to get a flu shot, and eventually the COVID-19 vaccine when available.

Neither the courts nor government agencies have yet addressed whether a COVID-19 vaccination requirement at the workplace would be permitted. Therefore, the discussion here relating to flu vaccination issues may be instructive for when a COVID-19 vaccine becomes available. However, guidance relating to a COVID-19 vaccine may be different than those that apply to flu vaccination; in particular because the pandemic is unprecedented—at least in the last 100 years—and governments and courts may be more liberal in permitting a mandatory COVID-19 vaccine in the workplace. To be determined.

Is a Mandatory Flu Vaccination Policy Legally Permissible? It Can Be.

Absent a state or local law to the contrary, private employers are likely not prohibited from requiring employees to get a flu shot to keep the employees and the workplace safe. But as with most legal questions, there are some caveats and limitations. (Has an attorney ever just said, “Yes”?)

The federal Occupational Safety and Health Act (OSHA) requires an employer to maintain a workplace that is free of recognized hazards. In other words, keep your workplace safe. Seemingly, this would permit an employer to require the flu vaccine to help protect the workplace. However, the Americans with Disabilities Act (ADA) limits an employer’s ability to make medical-related inquiries and/or conduct medical examinations of employees—except in limited scenarios. The medical exam or inquiry would need to be job-related and consistent with business necessity, based on a reasonable (fact-based, not subjective or fear-based) belief that an employee’s ability to perform essential job functions will be impaired by a medical condition, or the medical condition will pose a significant risk of substantial harm to workplace health or safety. A mouthful.

In English? Essentially, there has to be a specific and reasonable basis to believe that requiring a flu vaccine is necessary to keep the workplace safe from significant risks and/or to permit employees to be able to perform their jobs.

For these reasons, in industries where employees serve and interact with populations who are more susceptible to contracting the flu (such as health care or early education workers), employers are likely permitted to (or required to in some states) require flu vaccination. For example, Rhode Island, in 2012, was the first state to pass a law requiring all health care workers to get a flu vaccine each season. Employers outside of these industries, however, face the challenge to articulate the basis (other than the general intention to keep the workplace safe) of the need for such a policy.

Do Employers Have to Permit Exceptions to Mandatory Vaccination Policies?

Even if a mandatory vaccination policy is permissible for an employer using the above criteria, employees may request (and must be permitted to request) reasonable accommodation from the mandatory flu shot requirements based on a disability under the ADA or applicable state laws. Similarly, under other laws an employer must consider an employee’s accommodation request based on a sincerely held religious belief, practice or observance (which, under relevant guidance, can be fairly broad and includes more than the traditional organized religions).

An example of an accommodation may be asking that specific employee to wear a mask, follow distancing rules or take other specific precautions instead of taking the vaccine. As with all accommodation requests, employers need to make the determination on a case-by-case basis (and consult counsel).

A Safer Option?

Interestingly, the federal agency that enforces anti-discrimination laws, the Equal Employment Opportunity Commission (EEOC), does not explicitly prohibit mandatory vaccination policies, but instead recommends that employers should consider encouraging employees to get the flu vaccine. To that end, the CDC has provided guidance on promoting vaccination in the workplace and has highlighted the importance of receiving a flu vaccination for this flu season in particular during the ongoing pandemic. Maybe the same will be the case when the COVID-19 vaccine is distributed, but that remains to be seen.

Is a Mandatory Vaccination Policy the Best Option for Your Business?

Implementing a mandatory vaccine policy, even where legally permissible, may not be the “right” option for some companies. Doing so could impose administrative burdens on business, as well as some legal risks. There are also practical and logistical considerations, such as who would pay for the vaccine, how the information will be collected and monitored, and whether a particular clinic should be designated for employees to receive their vaccine. A mandatory requirement may also stir up other liability concerns as employees may fall ill or have an adverse reaction after receiving the mandated vaccine.

Employers should, at the very least, consider encouraging their workforce to obtain flu vaccines. Companies considering mandatory inoculation policies (either for the flu or the COVID-19 vaccine should it become available) should carefully analyze both the legal and operational elements of such a policy, and ensure it complies with any new or updated guidance and law on these complicated issues.

Zev Singer is a partner with Greenwald Doherty LLP, an employment and labor law firm, representing exclusively employers. Zev focuses his practice on preventive advice/counsel and employment litigation in New Jersey and New York. Zev welcomes questions and comments, and can be reached at 212-644-1310 or [email protected].

DISCLAIMER: The foregoing is a summary of the laws discussed above for the purpose of providing a general overview of these laws. These materials are not meant, nor should they be construed, to provide information that is specific to any law(s). The above is not legal advice and you should consult with counsel concerning the applicability of any law to your particular situation. Copyright © 2020 Greenwald Doherty, LLP. All Rights Reserved.