From the desk of Tracie DeFreitas, M.S., CLMS, Lead Consultant — ADA Specialist
It’s that stuffy head, fever, sore throat, coughing, body aching, kind of season – flu season. While the influenza virus is active all year-round, October trends as the month that marks an impending flu season. With a barrage of public service reminders to get vaccinated, many people are in the midst of deciding whether to get the shot, or not. The Centers for Disease Control (CDC) recommends annual vaccination as the best way to protect against the flu, but sometimes people either choose not to be vaccinated, for personal or religious reasons, or cannot be vaccinated for health-related reasons. As it pertains to health-related reasons, according to the CDC, people with severe, life-threatening allergies to flu vaccine or any ingredient in the vaccine (e.g., gelatin, antibiotics, or other ingredients), people who have had Guillain-Barré Syndrome, and people who are not feeling well, should not be vaccinated for the flu. Also, those who are pregnant, have experienced a severe allergic reaction to the vaccine in the past, and some people with certain medical impairments cannot receive the live attenuated nasal spray flu vaccine.
In the workplace, employees in particular industries may not have a choice of whether or not to receive the vaccination, as receiving an annual flu vaccination may be a condition of employment, a job requirement. In recent years, the influenza virus has posed a significant risk to public health, leading some employers to require mandatory flu vaccination to reduce the spread of flu related illness in the workplace. Flu vaccination is often required for individuals working in healthcare industries and environments where services are provided to people who are considered high risk for having serious complications from the flu (e.g., adults 65 and over, young children, women who are pregnant, and some people with chronic health impairments). A mandatory flu vaccination requirement can be a work-related barrier for personnel in these types of industries who are not able to safely receive the flu vaccine.
Employers do have the right to establish legitimate health and safety requirements that are job-related and consistent with business necessity. This can include immunization requirements. As an example, healthcare industry employers can ordinarily demonstrate that vaccination of healthcare personnel to protect against the spread of infectious diseases like hepatitis B, the measles, or influenza, is necessary for patient and employee safety. What does this mean for healthcare employers with employees who request to be exempt from mandatory flu vaccination requirements for health-related reasons? Employers that require employees to receive flu vaccination to meet health and safety standards may be compelled to engage in an interactive process to determine if the Americans with Disabilities Act (ADA) applies, and to allow exemption from flu vaccination requirements, when necessary and reasonable.
The Equal Employment Opportunity Commission (EEOC) has taken the position that an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents safe vaccination, or on religious grounds under Title VII of the Civil Rights Act. From an ADA perspective, this means that private employers may require flu vaccination as a job requirement as long as they are prepared to engage in a good faith interactive process to determine if an individual seeking vaccination exemption for health-related reasons, 1) has a qualifying disability under the ADA, and 2) can alternatively be protected from exposure to infectious diseases that can be transmitted to and from healthcare workers and patients. The feasibility of allowing an exemption as an accommodation will likely depend on the availability of effective alternative means of infection control, such as wearing a mask.
Upon receiving a request from an employee to be exempt from flu immunization requirements for a disability-related reason, an employer may seek verification that the individual has a record of or actual 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. For example, when an individual requests exemption on the basis of a past history of Guillain-Barré Syndrome, the employer may request that the employee provide disability-related documentation, from an appropriate professional, that substantiates that the individual has a record of the impairment and cannot receive the flu vaccination because such vaccination is not recommended for individuals who have had this autoimmune disorder.
When immunization for the flu is not recommended, due to health-related reasons, it may be necessary to approve alternative infection control practices as a form of accommodation, if effective and reasonable. Accommodations will vary, but possible solutions might include:
- Exempting an employee from an annual vaccination requirement
- Allowing the use of an approved mask as an alternative to vaccination
- Allowing the use of other types of personal protective equipment, such as a protective hood with face shield, suit, gloves, etc.
- Temporarily assigning job duties that do not require direct patient care
- Reassigning the employee to a vacant position or department that does not require vaccination
Whatever the reason for not receiving a flu vaccination, everyone in the workplace can do their part to help reduce the spread of the flu virus. The CDC offers information about everyday preventive steps that can be taken to stop the spread of germs, and JAN offers solutions for keeping the flu virus at bay in the JAN blog, Fighting the Flu at Work.