The CDC emphasizes that getting a flu vaccine this year is “more important than ever during 2020-2021 to protect yourself and the people around you from flu.” The EEOC has taken the position that employers should encourage, but not require, employees to get the influenza vaccine.
May an employer covered by the ADA compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic? The answer is no. Employees may be entitled to an exemption from a mandatory vaccination requirement based on a disability. Similarly, under Title VII, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him or her from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.
The healthcare environment poses special concerns. Healthcare facilities have often required healthcare workers to be vaccinated for diseases, including the flu, in order to prevent outbreaks. At other times, it is mandated by employers as a condition of employment. However, even in healthcare industries, an employer covered under the ADA and Title VII is required to accommodate an applicant’s or employee’s disability or religious beliefs in accordance with applicable law.
If an employee requests an exemption from a mandatory flu shot based on a medical condition, the employer’s first step should be to engage in the interactive process to determine whether there is a reasonable accommodation that would not pose an undue hardship. Under the ADA, an undue hardship means a significant difficulty or expense with a focus on the resources and circumstances of the employer in relation to the nature, cost, or difficulty of providing the accommodation. That is not likely in most cases.
Likewise, under Title VII, an employee may be entitled to an exemption, even in healthcare facilities, if the employee has a sincerely held religious belief, practice, or observance which prevents the employee from getting the vaccine. Under Title VII, the employer is required to provide an accommodation unless it poses an undue hardship.
Whether an employer should try to mandate the flu vaccine may depend on the workplace-at-issue and the level of potential exposure to the flu. Where employees are regularly exposed to people whom may have the flu, such as healthcare facilities, an employer may mandate the flu vaccine, but must be prepared to accommodate those with medical or religious objections.