Flu season is coming. If you work for a health care institution or organization that could be of particular concern. Mandatory vaccination programs are very common in the healthcare industry. Is it legal? Usually, yes. Some states might even require you to offer the vaccine. But even a mandatory flu shot (or other vaccination) may not always be mandatory. The EEOC certainly takes that position, and in some cases they are right. The reasons are usually based on religious belief or disability. The EEOC just sued St. Thomas Health in Nashville over its mandatory flu shot policy. Read on to see when and how you can mandate flu shots — and to learn when you might need to be a bit more flexible…
Many employers in health care require flu shots and other vaccinations. The consequences for employees who do not do so can range from mandatory time off to termination of employment. Some employees object to flu shots for various reasons. Can you force an employee to do it? Technically, no, but you might be able to condition employment — or continued employment– on getting the shot.
The Center for Disease Control (CDC) recommends that all workers with direct and even indirect patient care and exposure get vaccinated. OSHA has said it “does expect facilities providing healthcare services to perform a risk assessment of their workplace and encourages healthcare employers to offer both the seasonal and H1N1 vaccines. ” However, even OSHA acknowledges that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistle-blower rights.” In other words if for medical or health reasons the shot actually endangers the employee you cannot compel the employee to get it. But what about the health and safety of your patients and your other workers?
If your employee has an allergy to one of the vaccine’s ingredients, or any other similar medical issue, and s/he informs you of this issue, then guess what? You’ve got yourself a request for a reasonable accommodation under the ADA. Maybe the vaccine is available in another form that won’t trigger those problems for the employee. Maybe s/he can wear a mask over his/her mouth and nose. Maybe that employee doesn’t really have contact with patients and the need for the vaccine is less critical. The point is you must then engage in the interactive process to determine if there is an available reasonable accommodation. If there is no alternative available or the alternatives would pose an undue hardship (i.e. too many people are put at risk, or the cost is prohibitive, or the impact on your facility is significant) you may not have a duty to accommodate that particular employee in those circumstances, and you may even have the right to terminate his or her employment.
What about the employee who says that vaccinations violate his or her religious beliefs? Similar to the ADA, Title VII also requires reasonable accommodations for sincerely held religious beliefs, unless such accommodations would pose an undue hardship. The bar here is not quite as high as it is under the ADA though. Under the ADA an undue hardship is one that causes “significant difficulty or expense”, whereas under Title VII religious discrimination claims, an employer need only show that the accommodation involves “more than de minimus cost”. (Even under this standard though, disgruntled or jealous co-workers or customer preference is not an undue hardship.)
In EEOC v St Thomas Health, one of St Thomas’ food and environmental service providers refused to get his annual flu shot based on his religious beliefs, and St Thomas fired him. The EEOC says St. Thomas violated Title VII. The EEOC points out that in previous years St. Thomas allowed this worker to wear a mask, (i.e. it had accommodated his religious beliefs) and now refused to do so. If this employer does not have a sound reason for discontinuing that accommodation it may lose the case. On the other hand, maybe there is some evidence that the mask really doesn’t protect this worker and others with whom he came into contact. Maybe St Thomas did look for other accommodations. I’ll certainly be staying tuned to see if there are more facts that might shed some light here.
In general, if your agency or facility’s services involve patient contact, you probably want some type of vaccination policy in place. As an employer you are required to take reasonable steps to provide your employees a safe workplace. So what should you do? What can you do?Here are a few ideas:
- Assume that some employees will request religious and/or disability accommodations. Formulate a process and include it in your policy. Consider printing forms that you can provide employees requesting such an accommodation.
- While you only have to accommodate sincerely held religious beliefs, keep in mind that some objections to vaccines might not appear to you to be religious at first glance, but may be in the eyes of the law. For example, the EEOC (and I believe, at least one federal court) has held that veganism, under the right circumstances is a religious belief. A vaccine that contains eggs may pose a problem there. The point is, proceed with caution.
- Engage in the interactive process and explore options for reasonable accommodations. Is it possible to modify the employee’s functions, require an alternative version of the vaccine (a nasal spray, perhaps) or transfer the employee to a vacant position, allow him/her to wear a surgical mask, take mandatory time off, for example?
- Document everything! Start with documenting the request, the stated reason for the request, the options explored, anything else involves in the interactive process (e.g. discussions with the employee’s healthcare provider) what options you considered, rejected or granted, who was involved, the reasons for your decision(s), etc.
- Don’t retaliate! See my other posts on retaliation (starting here and here) for more details.
Let’s stop there for now. In the meantime, load up on that echinacea and zinc and stay healthy!
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