Take Legal Action if an Employer Forces You to Get a Flu Shot

In general, companies in the United States can require that employees get a flu shot. Depending on the industry you work in, a flu shot may actually be required by law. If you want to challenge a flu shot requirement, then you should analyze your situation. You may have grounds to challenge the requirement collectively (if you are in a union) or individually (if you have a religious objection). Because this is a complicated area of law, you should consult with an attorney.

Steps

Identifying Grounds for a Legal Challenge

  1. Check if you belong to a union. Your union contract may limit your employer's ability to force you to get a flu shot. This contract is called a “collective bargaining agreement.” You should check whether you are in a union and read any collective bargaining agreement.[1] If your employer tries to force a flu shot requirement on you, you can bring a lawsuit in court.
    • In 2005, the Washington State Nurses Association successfully challenged a flu shot requirement because they did not agree in collective bargaining to the requirement.[2]
    • Talk to your union representative if your employer requires that you get a flu shot. Your union has lawyers who will investigate a legal challenge.
  2. Read your employee contract. Even if you aren't in a union, you may nevertheless have an employment contract, which could also limit your employer's ability to require a flu shot.[3] You should find your copy and read it. Specifically, look to see what qualifies as “good cause” for demotion or termination.
    • If you refuse the flu shot, your employer may punish you. However, your employment contract outlines the reasons you can be punished. Accordingly, you should meet with an attorney to analyze the contract.
    • You can bring a breach of contract lawsuit if the contract doesn't allow your employer to punish you for refusing a flu shot.
  3. Research your state laws. Your state or local laws may also limit your employer's ability to require a flu shot. You can read up on these laws by doing Internet research. Type “your state” and “flu shot requirement.”
    • Some states actually require that hospital employees get flu shots.[4] If this is true in your state, then it will be very difficult to challenge the flu shot requirement.
    • However, states that require flu shots also usually have exceptions for people claiming religious, medical, or philosophical objections. You should read up on the details of your state's requirements.
  4. Identify whether antidiscrimination laws apply. State and federal antidiscrimination laws also limit your employer's ability to require flu shots in some situations. For example, federal antidiscrimination law prohibits employers from discriminating on the basis of disability or religion. If your religion prohibits vaccinations, or if a medical condition prevents you from getting one, then you could claim employment discrimination should your employer punish you.[5]
    • Antidiscrimination laws don't provide a complete defense. Instead, these laws require employers to make “reasonable accommodations.” This means that the employer should accommodate you unless doing so would cause an “undue hardship,” which is not hard for your employer to claim.[6]
    • Your employer will have to analyze the specific facts of your case to determine whether or not granting an exemption would cause undue hardship. If your employer believes a hardship would exist, then they can fire you for refusing to get the shot.
  5. Meet with an attorney. This area of law is complicated, and you would benefit from meeting with an attorney. Only a qualified attorney can provide legal advice tailored to your exact situation. You can get a referral to an attorney by contacting your local or state bar association.
    • When you get the name of an attorney, you should call him or her up and schedule a consultation. Ask how much the attorney charges for consultations.

Seeking an Exemption from Your Employer

  1. Ask your employer for an exemption. If your employer puts in place a flu shot requirement, then you can ask for an exemption. You should identify your reason for the exemption, based on your research. For example:
    • Claim a religious exemption. Be prepared to show your employer proof that your religion really prohibits or frowns on flu shots. For example, you could get a signed letter from your faith leader.[7]
    • Claim a medical exemption. You could also tell your employer that the vaccine could harm you. For example, many vaccines have a small amount of egg in them. If you are allergic to eggs, you could point that out.
    • Request an exemption for personal reasons. You can always ask for an exemption for other reasons. It's up to your employer whether to grant or deny your request.
  2. Propose a workaround. You might be able to work around the flu shot requirement. For example, you could offer to wear a mask during flu season. Alternately, you could be reassigned to a different location. If either of these is reasonable, then suggest them to your employer.
    • These kinds of workarounds make it harder for your employer to claim that giving you an exemption would create an “undue hardship.”
    • However, in some situations, these workarounds might not be reasonable. For example, you might be an employee who is hard to replace. In this situation, your employer probably can't reassign you.
  3. Decide whether to get the flu shot. If your employer denies your request for an exemption, then you face a choice—get the flu shot or face punishment. Your punishment could include getting fired from your job, so you should think carefully about whether to comply.
    • If you don't want to get fired, then you should discuss with your attorney your options. For example, you could sue in court for an “injunction,” which would be a court order that the flu shot requirement is unenforceable. You may also be able to seek a temporary restraining order, which would take effect immediately.[8]
    • Injunctions and temporary restraining orders, however, aren't available in all situations, particularly if you are claiming employment discrimination.[9] In this situation, you might have to bite the bullet and either get the flu shot or get fired. Once fired, you can bring a discrimination charge against your employer. Talk with your attorney about all of your options.

Filing a Discrimination Charge

  1. Visit your nearest EEOC office. You can file a discrimination charge by visiting your nearest EEOC office. The EEOC has 53 field offices around the country. You can find a list at the EEOC website.[10]
    • Call ahead of time and ask whether you need to make an appointment. Although you can provide information over the phone to start the process, you can't file a discrimination charge over the phone.[11]
    • States also have their own antidiscrimination laws and their own agencies tasked with investigating violations. If you want to file a claim with your state agency, then look on the website to find your nearest office. State laws typically cover smaller employers which aren't covered by federal law. Generally, your employer must have 15 or more employees to be covered by federal law.[12][13]
  2. File a charge by writing a letter. You can also file a discrimination charge by writing a letter. Make sure that the letter contains the following information, which is required by the EEOC:[14]
    • your name and contact information (address and telephone number)
    • your employer's name and contact information (address and telephone number)
    • the number of employees who work for your employer
    • a brief description of the discrimination
    • when the discrimination took place
    • the basis of the discrimination
    • your signature
  3. Mail the letter. You should mail the letter certified mail, return receipt requested to the nearest EEOC field office. Hold onto the return receipt since it serves as proof that your letter was received. Also keep a copy of the letter for your records.
  4. Participate in mediation. Once the agency receives your charge, it will investigate. You may be sent a questionnaire requesting additional information.[15] About 10 days after receiving your charge, the EEOC will contact your employer.
    • The EEOC sometimes asks employees and employers to participate in mediation to try and resolve the dispute. In mediation, you meet with a neutral third party who helps each side talk about the dispute and reach a compromise both can live with. On average, mediated disputes are resolved in three months.[16]
    • If mediation is unsuccessful, or if you reject mediation, then the EEOC will need to perform a thorough investigation. It may visit your worksite or interview people. A full investigation generally takes 10 months on average.[17]
  5. Receive your “right to sue” letter. Unfortunately, you can't sue for employment discrimination unless the EEOC or your state agency gives you permission. It gives permission by issuing a “Notice of Right-to-Sue” letter. The EEOC will issue the letter after it completes its investigation.
    • However, if 180 days have passed since you filed your charge, you can request that the EEOC issue the letter. You should send a letter to the Director of the office where you filed your charge. After issuing your letter, the EEOC will close its investigation.[18]
    • You have 90 days to file your lawsuit after receiving your letter.
  6. File a wrongful termination lawsuit. You can sue your employer for violating your rights as an employee. You can file for “wrongful termination” if your employer discriminated against you or violated your employment contract by punishing you for refusing to get a flu shot.
    • You begin the lawsuit by drafting a “complaint,” which is a legal document you file with the court. In the complaint, you identify yourself and your employer. You also explain the reasons why you are suing.[19]
    • See Sue for Wrongful Termination for more information.

References

  1. ↑ http://labor-employment-law.lawyers.com/human-resources-law/forcing-flu-shots-employees-and-health-at-work.html
  2. ↑ http://www.vaccinerights.com/healthcareworkers.html
  3. ↑ http://labor-employment-law.lawyers.com/human-resources-law/forcing-flu-shots-employees-and-health-at-work.html
  4. ↑ http://www.hopkinsmedicine.org/mandatory_flu_vaccination/faq.html
  5. ↑ http://labor-employment-law.lawyers.com/human-resources-law/forcing-flu-shots-employees-and-health-at-work.html
  6. ↑ https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/14/nurse-not-entitled-to-religious-exemption-from-flu-vaccine-requirement/
  7. ↑ https://healthimpactnews.com/2014/lawsuits-against-hospitals-begin-for-loss-of-employment-due-to-mandatory-flu-shots/
  8. ↑ http://www.businessdictionary.com/definition/temporary-restraining-order-TRO.html
  9. ↑ http://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=1881&context=tlr
  10. ↑ https://www.eeoc.gov/field/index.cfm
  11. ↑ https://www.eeoc.gov/employees/howtofile.cfm
  12. ↑ https://www.eeoc.gov/laws/types/religion.cfm
  13. ↑ https://www.eeoc.gov/laws/types/disability.cfm
  14. ↑ https://www.eeoc.gov/employees/howtofile.cfm
  15. ↑ https://www.eeoc.gov/employees/howtofile.cfm
  16. ↑ https://www.eeoc.gov/employees/mediation.cfm
  17. ↑ https://www.eeoc.gov/employees/process.cfm
  18. ↑ https://www.eeoc.gov/employees/lawsuit.cfm
  19. ↑ http://nationalparalegal.edu/public_documents/courseware_asp_files/researchLitigation/PreTrialPractice/Summons.asp
Retrieved from "https://kipkis.com/index.php?title=Take_Legal_Action_if_an_Employer_Forces_You_to_Get_a_Flu_Shot&oldid=320898"