Get the Shots or You're Fired? Watch Out for These Legal Landmines

Can you make your employees get a flu shot? What about a COVID-19 vaccine? Before you try to, you may want to watch your step.

Flu season is in full swing. The Centers for Disease Control and Prevention (CDC) says getting the flu vaccine this year is more important than ever. And a COVID-19 vaccine is on the horizon, which offers the promise of a return to normal society and safe workplaces. But before you make a mandatory vaccination policy for the flu or the future COVID-19 vaccine, consider this:

It is legal to make employees get vaccinated for the flu or COVID-19?

It depends.

Generally, an employer may have a policy that urges or requires employees to be vaccinated for the flu. For instance, the Occupational Safety and Health Administration, the federal agency that enforces an employer’s duty to maintain a hazard-free workplace, allowed employers to mandate inoculations during the 2009 swine flu. Also, states may have specific vaccination laws for certain employment settings like schools, daycare and health care facilities. The CDC keeps a database of these laws. However, a strict vaccination policy that makes no exceptions will likely run into trouble, mainly with the Equal Employment Opportunity Commission (EEOC).

What is the EEOC’s stance on mandatory vaccinations?

In 2016, we wrote about a trend with the EEOC suing hospitals for religious discrimination over policies mandating flu shots. These cases made it clear that employers must heed religious and disability protections under Title VII and the Americans with Disabilities Act (ADA) when they require vaccines.

Under Title VII, employers cannot discriminate on the basis of religion. They also have a duty to accommodate an employee’s “sincerely held religious belief, practice or observance,” such as a sincerely held belief that vaccination violates a religious principal. The ADA protects against disability discrimination and requires employers to accommodate an employee’s disability, such as a medical condition that prevents vaccinations. Both make an exception to these duties when they put undue hardship on the employer.

The “undue hardship” defense for religious accommodation is much lower than that for disability accommodation. For religious accommodation, employers must only show “more than de minimis” cost or burden on their business operation. They must show a “significant difficulty or expense” for disability accommodation. The undue hardship inquiry varies by employer and industry. For instance, employers in the health care, education and retail settings may establish undue hardship more easily than industries that are not client or patient facing.

But even where employers believe they have a viable defense, they should try to accommodate employees who seek exemptions. These accommodations may include:

• Use of masks or other protective equipment
• Telework
• Leave of absence
• Changing employee duties, such as reducing client or patient contact or moving them from front to back of the house

Back in March, the EEOC concluded that even during a pandemic, the ADA and Title VII largely bar an employer from making employees get flu vaccines, regardless of medical condition or religious beliefs. But it acknowledged that the COVID-19 pandemic met the ADA’s “direct threat” standard under CDC and other guidance. This is because someone with COVID-19 poses a “significant risk of substantial harm” to others in the workplace. This determination allowed employers to take employees’ temperature and ask certain questions, and many employers have done so.

But the same conclusion may not be reached for this season’s potential flu pandemic. If a flu pandemic was similar to the seasonal influenza or the 2009 swine flu, the EEOC stated it would not pose a direct threat or justify disability-related questions and medical exams.

Once a COVID-19 vaccine is approved for general use, employers can expect updated guidance from the EEOC.

Employer’s victory in recent flu shot policy case

A June 2020 Massachusetts case highlights a typical scenario employers may face. In EEOC v. Baystate Medical Center, Inc., an employee pushed back on a mandatory vaccination policy on religious grounds. She argued “God will destroy [her]” and she will “go to hell” if she defiled her body by getting the shot. Under hospital policy, she could wear a mask instead. But she failed to consistently do so, complaining that she couldn’t speak clearly with a mask on. She was placed on unpaid leave and ultimately fired. The court did not look at whether her religious belief was bona fide or sincerely held. Instead, the court determined that there was no religious discrimination, because the employee had the option to wear a mask and expressed no religious belief that forbid her from doing so.

This case shows that employers should be flexible with mandatory vaccination policies. They should engage with employees who object to getting a vaccine on religious or disability grounds to find other options, like wearing protective gear.

The anti-vaccination movement

Employees may also object to being vaccinated because they ascribe to the social movement against vaccinations. While the movement often focuses on children and vaccines for common childhood diseases, it includes a general resistance to vaccines and has become a charged social and political issue. Under Title VII, an employee who has secular objections based on personal, political, sociological and economic rationale to getting a flu shot is not entitled to religious protection. But employers should be careful—the EEOC and courts often construe religion very broadly. Courts do not like to decide factual issues of what is and is not a sincerely held religious belief, practice or observance.

It’s clear that there is no one size fits all when it comes to vaccination policies. To navigate vaccination issues, employers should seek legal advice tailored to their specific workplace and situation.

Please contact Rebecca Sha or any other member of Phelps’ Labor and Employment team if you have any questions or need compliance advice and guidance.