Legally Require Employees to Get a Flu Shot

Missed work caused by the seasonal flu costs companies millions of dollars each year. For this reason, you may want to require that all employees get a flu shot. However, outside the health care industry, few companies do. In order to legally require your employees to get the shot, you need to research your state law. You should also be prepared to give people an exemption (called an “accommodation”) for religious or medical reasons. Because of the legal complexity involved in requiring flu shots, you are encouraged to adopt a voluntary program.

Steps

Checking the Legality of Requiring Flu Shots

1. Identify if your employees are “at will.” In every state but Montana, employees are “at will” unless you have changed the relationship. You can fire “at will” employees for any legal reason, at any time. However, you may have changed the “at will” status in the following ways:
   • Your employees are unionized and you agreed to a collective bargaining agreement. In this situation, the terms of the bargaining agreement will control whether you can require flu shots.
   • You signed an employment contract with an employee. This contract probably states that the employee can only be fired “for cause.” Furthermore, the contract should have defined “cause.”
   • You created an implied contract with employees based on promises you made in an employment offer letter, employee handbook, or in person. Although rare, you can sometimes create a contract accidentally based on promises you make.
2. Check your state or local law. Federal law doesn’t generally prohibit flu shots. However, your state or local law may. In some states, hospital staff must get flu shots, so if you have a business in that field you need to know that information as well.
   • You can visit the website for the Centers for Disease Control, which collects information on state vaccination requirements for hospital and ambulatory care employees.
   • You can also do a general search on the Internet. However, there may not be much information available. Type “your state” or “your city” and “mandatory flu shot.”
3. Identify exemptions created by antidiscrimination law. Antidiscrimination laws limit your ability to fire “at will” employees. For example, you can’t fire or demote someone based on a protected characteristic, such as race, ethnicity, or sex. With respect to flu shots, some people might claim an exemption based on the following:
   • Religion. Some religions prohibit vaccination. If you want to require employees to get a flu shot, then you need to provide an exemption for religious reasons. If you don’t, then you could be sued for employment discrimination.
   • Medical/disability. Some people should not get flu shots because they may be allergic to eggs, which are used in some vaccines. Accordingly, you need to provide exemptions for disability. However, you should realize that shots have now been created without egg.
4. Meet with an attorney. Only a qualified attorney can offer you accurate information about the laws that limit your ability to require employees to get a flu shot. If your company does not already have a lawyer, then you should get a referral.
   • You can ask another business if they would recommend their lawyer, or you could contact your state bar association and ask for a referral.
   • Call up the lawyer and schedule a consultation. Ask ahead of time how much he or she charges.
   • Because this is an unsettled area of law, the attorney may need to do extensive legal research and get back to you at a later date.

Terminating Employees Who Refuse

1. Adopt a flu shot requirement. Remember you have to adopt the program legally. For example, if your employees are unionized, then you should make getting a flu shot part of your next collective bargaining agreement. In the past, some employees have been successful at defeating a flu shot requirement when it was imposed outside collective bargaining. Talk with your attorney about whether you can adopt a policy outside collective bargaining, as this is not a clear area of law.
   • Also, if you have an employment contract with an employee, then include a flu shot requirement in the new contract. For example, you could define “just cause” for termination to include refusal to get a flu shot.
2. Notify employees of the requirement. You can notify employees that they need to get a flu shot by letter, email, or both. Give the employees a deadline and tell them what kind of verification you will need, such as a form completed by a doctor or nurse.
   • Some employers have created webpages explaining to their employees why they must get the flu shot. Johns Hopkins Hospital, for example, has a website in which it explains that it has adopted a mandatory policy because voluntary policies were ineffective. It also identifies the employees who must get the flu shot.
   • The Johns Hopkins webpage also clearly tells employees what will happen if they decline to get the flu shot and are not awarded an exemption: they will be placed on administrative leave for a week and then considered to have voluntarily resigned.
3. Create a process for exemptions. To comply with antidiscrimination laws, you will have to give employees a chance to seek an exemption (called an “accommodation”) for religious or medical reasons. You should create a form for employees to fill out stating their name and the reason for the accommodation. Tell employees where they can get the form and where they should submit it. Require that they submit the form a few weeks before the deadline for getting the shot so that you can review it.
   • Remember that your state law may also require that you accommodate philosophical reasons, which could be something like not wanting to violate their bodily integrity. Make sure you consider any accommodation required by state as well as federal law.
4. Require supporting documentation. You don’t have to accept an employee’s claim that his or her religion prohibits vaccines. Instead, you could ask that the employee provide you with a signed letter from a faith leader.
   • Likewise, if your employee claims a medical exemption, then request that a doctor sign a waiver form.
5. Analyze the request for exemption. Someone claiming a religious or medical objection is not automatically entitled to the exemption. Instead, the law requires that you as the employer balance the employee’s rights against the burden on your business. If granting the accommodation would cause your business “undue hardship,” then you don’t need to grant it. Before denying employees requested medical exemptions, consider that coercing them into a medical procedure with risks could result in their injury or illness.
   • “Undue hardship” is not a difficult standard to meet. Essentially, if granting an accommodation would cause more than minimal financial harm, then you don’t have to grant the accommodation.
   • However, you should be sure to give each request an individualized review. Consider any potential workarounds. For example, you could have an employee wear a surgical mask during flu season. This could be a cost-free way of keeping the employee.
6. Reassign employees instead of firing them. You can avoid some of the difficult legal issues if you reassign an employee who objects to a flu shot instead of firing them. This might not always be possible, depending on the person’s job and your business needs.
   • In some situations, however, you could reassign a person away from customer contact. For example, a staff member at a nursing home might clean resident rooms. However, you could reassign him or her to work in a back office.
7. Document any termination. After you adopt your policy, an employee may refuse to comply. You might have rejected their request for an exemption because any workaround would have caused your business an undue hardship. In this situation, you have the option of firing the employee.
   • You should follow your business procedures for termination as set out in your current business policies. Remember to document everything, in particular your reason for denying the accommodation.
   • See Prevent Wrongful Termination Lawsuits for information on how to terminate an employee legally.

Starting a Voluntary Program

1. Download the Toolkit. Your best bet is to encourage employees to get flu shots but not require them. The Centers for Disease Control has a toolkit you can download from the Internet. This toolkit provides helpful information and resources for starting a voluntary flu shot program in your company.
2. Schedule an on-site flu clinic. You can encourage employees to get a vaccine by offering them free or for a reduced cost. If you have an on-site health clinic, then you can offer the flu shots there. However, if you don’t, then you can contract with a pharmacy or vaccination to come to your worksite.
   • You can research companies that handle the planning and delivery of on-site clinics. Some of these companies have networks of over 6,000 health professionals around the country who they work with. Search online for “on-site flu clinic” and contact them to ask about their rates.
   • If you don’t want to offer an on-site clinic, then you could create flu shot vouchers, which could be redeemed at many different pharmacy chains, such as Rite Aid, CVS, and Walgreens. Some of the companies that coordinate on-site clinics also run voucher programs you could use.
3. Print out flyers. The Toolkit has flyers you can print out and post around your worksite. They are available free of charge. Alternately, you could download a flyer and send it around as an attachment to a company-wide email.
4. Speak to employee managers. You can encourage participation if employees can get a flu shot without having to use personal time. Speak to managers in your company and get them to agree that their employees can get a vaccine on company time.
   • By giving employees some time off, you will lose some profitability. However, you should more than make up for it with decreased employee absenteeism.
5. Hold a contest. You can also encourage participation by holding a contest. For example, you could offer a prize to the department that has the highest participation rate.
   • Offer the winning department a pizza lunch or an after-work party as a reward.
6. Encourage employees to get flu shots on their own. If hosting a vaccine provider at your worksite isn’t possible, then you can still encourage your employees to go get flu shots on their own. You can encourage greater participation if you use the following:
   • Give employees one or two hours off to go get a flu shot somewhere off the worksite. They might go to a nearby clinic or hospital.
   • Provide employees with written material that explains the benefits of getting a flu shot for your employee and their family. You can print off material from the Toolkit.
   • Display posters in break rooms and high traffic areas. The more times someone sees information, the more likely they are to remember it.

References

See also

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• Avoid Germs at the Office
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• Balance Work and Health
• Do Yoga at Your Computer
• Sue for Asbestos Exposure
• Put on a Cleanroom Suit
• Obtain OSHA Reports
• Measure Work Safety

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