Flu Shots, Can You Require Them?
It is the beginning of the flu shot season. Every year when the cool weather starts to roll in, the “Get Your Flu Shots Here!” signs start to appear in store windows. The question we ask today relates to requiring workers to get flu shots.
Question: Our staff comes in close contact with elderly clients in our business. Can we require our employees to get seasonal flu shots in order to protect the health of our clients?
Generally speaking, if employees do not have employment or union contracts that alter the nature of their at-will employment, employers with a business reason to do so may mandate flu shots. In some industries, requiring flu shots may make the most sense. This is particularly true when employees work with sick people or have very close contact with vulnerable populations. However, other employers may want to consider whether they may be able to achieve similar rates of absenteeism while maintaining employee morale by encouraging, rather than requiring, employees to get the vaccination. It’s also worth noting that the flu vaccine will not completely eliminate the flu, even if every employee gets a shot. That being said, if an employee objects based on a reason relating to his or her protected class status, you will need to look into accommodations for that employee. For example, if an employee has a disability that prevents her from having vaccinations, or an employee has a religious objection to vaccinations, there must be an exception to the rule. While vaccine allergies and side effects are rare, such medical and health exceptions must be considered. The law has generally been on the employer’s side in these cases, but there has been recent litigation on this issue. Additionally, employees may react negatively to mandated flu shots and employers should consider the potential impact on morale prior to implementing the policy. To avoid potential litigation and morale issues, we recommend that employers explain the reason behind the flu shot requirement, set a deadline by which employees must receive a flu shot, and create a procedure for employees to bring up any objections. Employers should also communicate that they will pay for the vaccination. Any employee objections should be analyzed on a case-by-case basis. An approach in one scenario may not be best for another scenario. Depending on the objection, the job duties, and your business practices, it may be appropriate to have the employee wear a face mask or reassign duties so the employee does not come in contact with the vulnerable population if the vaccination is refused. Each objection and accommodation should be documented thoroughly to ensure that any action isn’t seen as discriminatory or construed as retaliation.