According to the U.S. Department of Health and Human Services (HHS), nearly 111 million workdays are lost each year due to the flu. The Centers for Disease Control (CDC) recommends that everyone over 6 months of age receive an annual flu vaccination, with limited exceptions for persons who are severely allergic to the vaccine or components of the vaccine, such as eggs. And the top strategy the CDC recommends for fighting flu in the workplace is for employers to host or sponsor a vaccination clinic.
Many employers do encourage their employees to receive a flu shot. Some employers even pay for the shot. But what about employers who require employees to receive a flu shot?
For example, East Tennessee Children’s Hospital rolled out a mandatory flu immunization policy in 2013. All employees, physicians, volunteers and students working at the hospital must receive an annual flu vaccination or obtain an exemption. Additionally, vendors who regularly enter the hospital during flu season are required to be vaccinated or wear a mask.
Nationwide, there is a trend toward mandatory flu immunization among employers that serve vulnerable populations, such as children, the sick and the elderly. Similarly, athletic trainers, massage therapists and other workers who are in the business of keeping their clients healthy, may be required to have an annual flu shot. Although human resource professionals are typically not thought of in the same category as health workers, human resource professionals who are involved in contact with members of vulnerable populations, or with the agencies and institutions that serve them, could find themselves faced with a mandatory vaccination requirement.
Are such mandatory vaccination policies legal? Yes – In the absence of any specific law to the contrary, an employer can generally require vaccination as a term and condition of employment. Two points of caution, though, are that employers must accommodate employees who cannot comply with an immunization requirement due to a disability protected by the Americans with Disabilities Act (ADA) or due to a religious belief protected by anti-discrimination law.
The ADA requires employers to provide a reasonable accommodation to an employee if the employee cannot comply with an employer’s policy due to a disability. Thus, employers with mandatory vaccination policies must consider whether an employee with an allergic reaction to the flu shot, or for whom the flu shot poses a threat or difficulty due to the employee’s disability, must accommodate the employee. An accommodation might be excusing the employee from receiving a flu shot but instead requiring the employee to wear a facemask.
The more interesting question is whether an employee is entitled to a reasonable accommodation when the employee’s religious beliefs interfere with mandatory vaccination. Title VII of the federal Civil Rights Act of 1964 protects employees and applicants from discrimination because of religion and defines religions as “all aspects of religious observance and practice, as well as belief.” Employees are entitled to a reasonable accommodation of their “religious” beliefs unless the accommodation would work a hardship on the employer.
As to whether a particular belief is entitled to protection, the EEOC’s regulations provide that religion includes moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views…” Moreover, “[t]he fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”
Courts have generally agreed with the EEOC that whether a religion is “traditional” or even “recognized” is not determinative as to whether Title VII’s protections apply. Rather, it is the sincerity of the employee’s belief, and the fact that it is part of a belief system (instead of a mere personal preference) that is determinative.
This nebulous definition of religion has resulted in employees claiming that they should be exempted from mandatory vaccination policies due to beliefs such as veganism. For example, in Chenzira v. Cincinnati Children’s Hospital Medical Center, a hospital employee alleged that she was a vegan and that taking the flu vaccine would violate her belief system. She applied for a religious exemption from the immunization policy but the hospital denied it and discharged her. The hospital moved to dismiss the employee’s Title VII claim on the grounds that veganism is not protected by Title VII, but the district court refused to dismiss the claim.
The court held that the employee had alleged sufficient facts to support her claim for religious protection. The court noted that employee had submitted an essay titled “The Biblical Basis of Veganism” and had cited biblical passages supporting her beliefs when she requested a religious accommodation from the hospital. Note that at this stage the court was not ruling on whether the employee actually did subscribe to veganism “with a sincerity equating that of traditional religious views,” but rather that she had made a plausible claim that was entitled to proceed. Unfortunately (for those of us interested in such things), the case settled and the court did not have the opportunity to decide whether the vegan was actually protected by Title VII.
The take-away is that encouraging – rather than requiring – flu vaccination is probably sufficient for most employers in most settings. For those employers with a compelling reason to require vaccination, the policy should include an exemption procedure so that employees with a plausible disability or religious belief have the opportunity to apply for an exemption.
Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at firstname.lastname@example.org.