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Flu season is back: Can you require employees to get a shot?

It’s that time of year again, with many employers offering free flu shots to employees in hopes of reducing flu-related absences and resulting productivity decreases in the months ahead. Most often, a flu shot is offered as a choice and presented as an optional benefit. But can you require employees to get one? Let’s take a look at the issues arising from that question.

FLU SHOTS AND AT-WILL EMPLOYMENT

The issue of whether mandatory flu vaccination policies are legal comes up most frequently in the healthcare industry, where employers have heightened concerns about employees spreading the flu to a vulnerable patient population.

In looking at this issue, the first concept to keep in mind is that most employment is at will. That means unless an employee has a contract or is under a collective bargaining agreement that says otherwise, the employer can impose pretty much any terms and conditions on employment. In an at-will situation, employees always have a choice—if they don’t want to do what the employer is asking, they can leave. The only exception would be a law that makes it illegal for an employer to impose certain terms and conditions of employment. And there are states that regulate vaccination policies. For instance, Oregon has a law requiring employers to offer flu vaccines to employees but prohibiting them from making the vaccines mandatory.

You will need to check the laws on this issue for any jurisdiction in which you have employees. In Tennessee, there’s currently no law regulating your obligations, rights, or restrictions with respect to offering or requiring flu vaccines. So, unless there’s a contract or agreement that says otherwise, Tennessee employers can have a mandatory vaccination policy. In other words, you can legally require employees to get flu vaccines as a condition of employment.

EXCEPTIONS TO THE RULE

On the other hand, Tennessee employers must understand that—just like any other policy—there are circumstances in which they may need to make exceptions to a mandatory vaccine policy. The exceptions primarily come from the federal Americans with Disabilities Act (ADA), which requires employers to provide reasonable accommodations to employees with disabilities, and Title VII of the Civil Rights Act of 1964, which requires employers to provide reasonable accommodations for an employee’s religious beliefs. Thus, if you have an employee who objects to getting a flu shot on medical or religious grounds, you must engage in an interactive process with her to determine whether she has stated a bona fide objection that is covered under one of those laws and, if so, whether a reasonable accommodation can be made. Keep in mind that you don’t need to rely solely on an employee’s representations and may ask for verification of the medical issues or religious beliefs forming the basis of her objection.

Examples of accommodations for employees who refuse to get a flu shot include requiring them to wear masks or temporarily reassigning them to positions in which they will have less interaction with customers, patients, or other employees. There is no “one-size-fits-all” answer to the question of whether any given solution is reasonable in your work setting or whether you will ultimately be able to accommodate an employee who refuses a flu shot. Sometimes an accommodation isn’t possible. The most important thing is to have a good-faith discussion with the employee, consider all the options, and document that you have done so.

Employers may also wish to consider other options for minimizing the spread of the flu other than or in addition to a mandatory flu vaccine policy. Such options include distributing hand sanitizer, easing attendance policies, increasing available sick leave, and/or encouraging or requiring employees who may have a contagious illness to stay home.

Kara E. Shea is a partner in the Nashville office of Butler Snow LLP. She can be reached at kara.shea@butlersnow.com

This article first appeared in the Tennessee Employment Law Letter on 10/01/2018 and has been reproduced with permission.