October signals the beginning of flu season. According to the Centers for Disease Control and Prevention (“CDC”), flu activity in the United States can begin as early as October and continue to occur as late as May, most commonly peaking in January or February. The CDC reports that approximately 5 to 20 percent of people get the flu each year. Unsurprisingly, an outbreak of the flu can lead to widespread absenteeism and can significantly impact an employer’s operations. To minimize the potential impact, employers often implement mandatory flu vaccination policies. As the peak of this year’s flu season approaches, employers should consider the following legal hurdles to implementing a mandatory flu vaccination policy.
• Business Necessity: Prior to implementing a mandatory flu vaccination policy, employers should evaluate the business need for such a policy. A reasonable business need can include a concern for the welfare of patients, employees, or clients. For example, hospitals, physicians’ offices, nursing homes, and day care centers often institute mandatory flu vaccination policies to safeguard the health of both their workforce and the population they serve. Because challenges to the policy are sure to arise, an employer should be prepared to articulate its business need for the policy.
• Union Concerns: Under the National Labor Relations Act (“NLRA”), a flu vaccination policy is a mandatory subject of bargaining. Consequently, a unionized employer cannot unilaterally implement such a policy; rather, the employer must first give the union notice of the policy and, if the union requests, bargain over the policy. Employers should be aware, however, that a union may have already waived the right to bargain over such a policy by way of its management rights clause in an existing collective bargaining agreement. As such, it is worthwhile for a unionized employer to evaluate the breadth of its management rights clause when considering its bargaining obligations in implementing such a policy.
• Religious Objections: An employer should be prepared to work with an employee’s religious objections to receiving a flu shot. Further, an employer should not automatically discount an employee’s set of beliefs that an employer might not ordinarily equate with religion. For example, at least one court has taken the position that veganism may exempt an employee from a mandatory vaccination requirement. Specifically, in Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., 2012 U.S. Dist. LEXIS 182139 (S.D. Ohio Dec. 27, 2012), the court recognized that veganism could be a “sincerely held religious belief, practice, or observance” entitled to protection under Title VII of the Civil Rights Act (“Title VII”). In Chenzira, the hospital required its employees to be vaccinated against the flu. One of its employees, Ms. Chenzira, refused the flu vaccination because she is a vegan (a person who does not ingest any animal or animal by-products) and the vaccine contained animal by-products (eggs). As a result, the hospital terminated her employment and Ms. Chenzira subsequently sued the hospital for discriminating against her on the basis of her religion—veganism. In denying the hospital’s motion to dismiss, the court held that Ms. Chenzira alleged a plausible claim for religious discrimination under Title VII, because she “could subscribe to veganism with a sincerity equating [to] that of traditional religious views.”
• Americans with Disabilities Act (“ADA”) Considerations: Where an employee objects to a mandatory flu vaccination policy based on a health consideration, the employer should engage the employee in the interactive process and discuss reasonable accommodations with the employee. The Equal Employment Opportunity Commission (“EEOC”) in its Technical Assistance Document, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” cautions employers that they may not compel all employees to get vaccinated. While a mandatory vaccination program is generally permissible, the EEOC warns that an employer must provide a reasonable accommodation for employees with a disability or medical condition for which vaccination is contraindicated (such as a severe allergy to eggs or an underlying medical condition compromised by a flu vaccine).