From the desk of Tracie DeFreitas, M.S., CLMS, Lead Consultant — ADA Specialist
Flu season in the United States generally occurs during the fall and winter months, usually beginning in October (CDC). This is the time of year when everyone is urged by public health authorities to get vaccinated for the flu or might even be asked to do so as a term of employment. Whether employers may require mandatory flu vaccination is a subject of debate that is not wholly settled but is a requirement that some businesses are considering as the 2020-2021 flu season collides with the COVID-19 pandemic.
We do know that employers are not prohibited from establishing job-related qualification standards related to health and safety. This might include immunization requirements. Any employer would likely need to establish a job-related health and safety concern in order to require a flu vaccination. The extent to which employers may require flu vaccination will depend on the work environment, job tasks, and relevant health and safety factors. As an example, some health care industry employers may be able to demonstrate that vaccination of health care personnel to protect against the spread of infectious diseases, like influenza, is necessary for patient and employee safety. In turn, some health care employers might be able to establish that such a requirement is job-related.
The state in which a business operates might also be relevant in determining whether an employer can impose a mandatory vaccination requirement on its employees. Some states have passed vaccination laws that can impact workplace polices related to mandatory vaccination.
The Equal Employment Opportunity Commission (EEOC) has taken the position that employers should encourage employees to be vaccinated for the flu rather than requiring vaccination. See the EEOC Informal Discussion Letter dated March 5, 2012. Employers that do implement mandatory immunization policies to meet health and safety standards must consider when exemptions may be required under federal law. The EEOC makes clear that an employee may be entitled to an exemption from a mandatory vaccination requirement based on disability under the Americans with Disabilities (ADA) or a sincerely held religious belief under Title VII of the Civil Rights Act and other nondiscrimination laws.
JAN does not provide technical assistance on Title VII but can address the issue from an ADA perspective. For information regarding applicable Title VII requirements, contact the EEOC or see What You Should Know: Workplace Religious Accommodation. An ADA covered employer should be prepared to engage in a good faith interactive process with an individual who requests exemption from a vaccination requirement as a reasonable accommodation based on a disability. Upon receiving a request from an employee to be exempt from a flu vaccination requirement based on a disability, an employer may seek documentation of the individual’s disability as part of engaging in the interactive process to determine if the ADA applies. The determination of whether an individual meets the definition of disability for ADA purposes must be made on a case-by-case basis.
In the EEOC guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act the agency notes that it would be a reasonable accommodation to grant an exemption from a vaccination requirement to an employee who cannot be vaccinated due to an ADA disability, barring undue hardship to the employer. See question 13. An employer that grants an accommodation exempting a qualified employee from mandatory vaccination may impose additional infection control practices in order to protect the health and safety of the exempt individual and others. Also, additional reasonable accommodations might be needed to enable an employee to continue performing the essential job duties when exempt from a vaccination requirement. For example, solutions might include:
- Allowing the use of an approved mask as an alternative to vaccination
- Allowing the use of other types of appropriate personal protective equipment (PPE), such as a face shield, hood, suit, gloves, etc.
- Temporarily assigning job duties that do not require flu vaccination to perform (e.g., non-direct patient care duties)
- Reassigning the employee to a vacant position or department that does not require flu vaccination
The 2020-2021 flu season will pose additional challenges for our communities and employers due the impact of the COVID-19 pandemic. In addition to preparing for flu season, many employers in the United States are still implementing controls to prevent the risk of exposure to COVID-19 in the workplace. The Centers for Disease Control and Prevention (CDC) suggests that getting a flu vaccine is more important than ever as a means for protecting communities from flu and to also help reduce the burden on health care systems that are caring for patients with COVID-19 in tandem with those who have the flu. Experts have expressed concerns about a possible ‘twindemic’ – where cases of the flu and COVID-19 might surge at the same time. The CDC still recommends annual flu vaccination as the best way to protect against the spread of influenza and suggests that employers promote vaccination in the workplace.
Public health authorities are the experts on preventing the spread of the flu. The CDC offers extensive information at the Prevent Seasonal Flu section of their website, including Flu Resources for Business. JAN offers practical suggestions for preventing the spread of the flu at work, including promoting sanitary behaviors in the workplace; encouraging employees to stay home when not feeling well; limiting group interaction; allowing flexible work arrangements; and being a partner in good health by educating employees about the spread of flu and ways to stay healthy. For more information, see JAN’s pre-pandemic article, Fighting the Flu at Work.
While the spread of the flu continues to be an important public health issue, many businesses are currently focused on ways to prevent the spread of COVID-19. Of course, businesses should consult the evolving guidance from the CDC and state and local public health authorities regarding COVID-19 prevention strategies but JAN offers accommodation strategies that might be useful when an employee has a disability-related reason for avoiding the risk of exposure to COVID-19 in the workplace. Similar strategies might be useful for also reducing the risk of exposure to the flu. For more information, see JAN’s Accommodation Strategies for Returning to Work During the COVID-19 Pandemic. Perhaps infection control practices implemented in response to COVID-19 might help reduce the impact of the flu on our communities and businesses this season.
The subject of mandatory flu vaccination draws attention to the related topic of whether employers might have any legal standing to impose mandatory COVID-19 vaccination requirements in the future. As there is not currently a COVID-19 vaccine, this is not an issue that has yet been addressed in any formal guidance or technical assistance provided by the EEOC related to the pandemic. It is expected that the EEOC will continue to monitor these kinds of workplace issues in response to the recommendations of public health authorities and issue pertinent guidance.
Additional information on the topic of job-related mandatory flu vaccination policies can be found in the following resources:
- A Guide for Employers Considering a Mandatory Flu Vaccination Policy
- Flu Season and Possible COVID-19 Vaccine Will Shine A Spotlight On Workplace Vaccination Policies
- JAN’s Workplace Flu Vaccination Requirements and the ADA – This article was written prior to the COVID-19 pandemic.
Everyone can participate in the overall effort to prevent the spread of the flu at work. For some, this might include being vaccinated for flu. For others, it might not. Either way, strategies can be implemented to help promote healthy workplaces and communities. For more information about this and other ADA and accommodation topics, contact JAN for assistance.