Fall is here and many employers are getting anxious about flu season. With COVID-19 still unchecked, they could soon find themselves in the position of battling staffing challenges and employee health issues from two dueling infections.
While healthcare employers have long mandated flu shots for employees, many others are considering imposing vaccine requirements for the first time. Here are some issues to consider along with possible employee talking points if you decide to encourage or require the shots.
Federal Law Doesn’t Prohibit Vaccine Requirement
Under federal law, employers may impose reasonable vaccine requirements. In most situations, however, you should be prepared to provide exemptions or accommodations for bona fide religious or health objections under Title VII of the Civil Rights of 1964 and the Americans with Disabilities Act (ADA). Employees asserting disability-related reasons have the highest level of protection.
Some states may permit employees to raise other reasons for being exempted from the vaccine requirement. Therefore, you should always consult with employment counsel about the state law’s impact on your policy decisions.
Standard Accommodation for Vaccine-Refusing Employees
Healthcare employers have been requiring the flu vaccine for years now; in fact, some of them have been mandated to do so. You can expect the practices that have worked in the medical arena generally suffice for most other businesses.
When healthcare employers receive a valid religious or health-related request from an employee to avoid the flu vaccine, they generally accommodate the individual by requiring him to wear a face mask while working.
Factors to Consider When Pinning Down Your Flu Shot Policy
Employers in nonhealthcare settings will need to decide if they will encourage or mandate flu vaccines in 2020. (For what it’s worth, the Equal Employment Opportunity Commission (EEOC) prefers for employers to encourage the shots.) Factors to consider include:
- Current risk of transmission in the workplace (e.g., whether employees are working closely or interacting with consumers);
- Special business justifications beyond just weathering the flu season’s likely attendance fallout in the midst of a pandemic (e.g., working with vulnerable populations or doing a job for which you would expect the rates of transmission to consumers or coworkers to be high);
- Whether health safety measures are in effect (e.g., face masks are already required);
- Your level of expertise to promptly evaluate religious, health, and personal requests for accommodations; and
- Risks of harming employee morale and/or losing valued workers if a flu vaccine is mandatory.
Work with legal counsel to assess how the factors line up for your particular work setting and population.
If You Mandate Flu Shots, Expect Resistance
Nationally, a slight majority of U.S. adults don’t receive the flu vaccine each year. For the 2018-19 flu season (the most recent season for which Centers for Disease Control and Prevention (CDC) statistics are available), only 45.3% of adults got the vaccine. In Alabama, for example, the figure was 44.8%. Among most working-age adults (ages 18-64) in Alabama, however, the vaccination rate was just 37.4% (nationally, it’s 39%).
Because a healthy (or not-so-healthy) proportion of adults opt out of the flu vaccine each year, any employer mandating the shots should be prepared to tackle morale issues and a number of accommodation requests—many of them referencing a mix of religious, health-related, and “personal liberty”-related reasons.
Keep in mind the healthcare environment has established wearing masks to be a standard accommodation for refusing to get a shot. So, if you’re already requiring face coverings, will you feel the damage to morale caused by mandatory vaccinations was worth it if a not insignificant number of employees remains unvaccinated for religious or medical reasons?
Whether you decide to encourage or mandate the flu shots, you should be able to articulate the importance of vaccinations and combat Internet-meme pseudoscience. If you require the shots, be sure to provide messaging from the top, consistently enforced by managers, about the rationale for the decision.
For example, you could look at attendance statistics to see if leave balances on average are lower in 2020 than in previous years. If so, use the average numbers to encourage employees to think about the consequences of getting the flu.
Finally, let your employees know about healthcare outlets providing free or reduced-cost flu vaccinations.
So, What Happens When COVID-19 Vaccine Is Ready?
It’s not unreasonable to expect the legal guidance for a still-hypothetical COVID-19 vaccine would track the flu shot guidance. We’re assuming of course:
- A coronavirus vaccine would have similar efficacy and similarly established medical reasons that would counsel against its use; and
- No government agency would publish guidance allowing employers to mandate the vaccine for employees in shared workspaces except in narrow and specifically defined health circumstances.
But questions remain. For example, will Congress pass a federal tort (wrongful act) immunity statute, and will it cover employers requiring a COVID-19 vaccine? With more than one vaccine in development, will employers have valid reasons to require one over another?
In any event, there likely will be ample time to define the parameters better between the discovery of any coronavirus vaccine and its manufacture in sufficient quantities for widespread use.
Whitney R. Brown is an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C., in Birmingham, Alabama. You can reach her at wbrown@lehrmiddlebrooks.com.