From the desk of Tracie DeFreitas, M.S., Program Leader, Director of Training and Outreach
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 impose.
Employers are not prohibited from establishing job-related qualification standards related to health and safety. This may include immunization requirements. Any employer would likely need to establish a job-related health and safety concern to require 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 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 while 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 flu vaccination may impose additional infection control practices in order to protect the health and safety of the exempt individual and others. Additional reasonable accommodations might be needed to enable an employee to continue performing their 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 (e.g., non-direct patient care duties)
- Reassigning the employee to a vacant position or department that does not require flu vaccination
In addition to implementing controls to stop the spread of the flu, many employers in the United States also implement controls to prevent the spread of 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 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.
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. Also see Accommodation Strategies for Returning to Workplace which includes both COVID-19 and flu prevention solutions.
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.