Mandatory Flu Vaccine Policies: Dealing With Employees Who Refuse the Shot

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

Flu season is coming, and healthcare (and other) organizations may be asking whether they should have mandatory flu vaccine policies. If an employer decides to implement a mandatory program, the next question is how to administer it.

In the healthcare industry, mandatory vaccination programs for employees are common. A number of states require healthcare employers to offer the vaccine or to ensure that employees receive it (with certain exceptions). The Centers for Disease Control (CDC) and Prevention website tracks these various state laws and their requirements, and the CDC itself recommends that all health care workers get vaccinated (including all workers having direct and indirect patient care involvement and exposure).

However, “mandatory” doesn’t always mean mandatory. In some circumstances, healthcare providers may have to grant exceptions to their “mandatory” vaccination programs. Federal and state discrimination laws require employers to provide reasonable accommodations to employees with disabilities and sincerely-held religious beliefs. Some employees may be medically unable to receive the flu vaccine. Others may have religious objections. Absent undue hardship, healthcare providers will need to create exceptions to their “mandatory” policies for employees as a reasonable accommodation for the employees’ disabilities or religious practices.

Missteps in the accommodation process can open the door to litigation. Last year, the U.S. Equal Employment Opportunity Commission (EEOC) sued a hospital that declined to grant religious exemptions for six employees who refused the flu vaccine. The case settled for $300,000. Another similar case, Equal Employment Opportunity Commission v. Baystate Medical Center, is still pending in federal court.

So how can healthcare employers implement mandatory flu vaccine policies? Every workplace and situation is different, but there are a few key points to keep in mind:

  • Be prepared. Before rolling out a mandatory vaccination requirement, an employer may want to have a process in place for requesting accommodations. A carefully written vaccination policy can describe that process, so employees understand where to turn if they need to ask for accommodation. Employers may also want to have forms for employees to fill out to request a waiver as an accommodation.
  • Objections based on religion or disability. Employers have an obligation to accommodate only sincerely held religious beliefs or disabilities. But remember, “religion” and “disability” are broad terms. The EEOC and at least one federal court consider veganism, in some circumstances, to constitute a religious belief that could exempt an employee from a flu-vaccination requirement. The bottom line is that an employee’s objection to a vaccine might not appear to be “religious” at first blush, but it could be religious in the eyes of the law. Medical conditions or restrictions causing the need to forego a flu vaccine should be relatively rare.  Recently, non-egg options and versions of the shot that are safe for those with egg allergies have become available. However, valid medical objections may still exist.
  • Explore accommodations. Employers may want to have general reasonable accommodations policies, as well as procedures and request forms, to manage the interactive process. For an employee who declines the vaccine, the appropriate accommodation will depend on a variety of factors, including whether the employee’s position involves patient contact. Depending on the circumstances, appropriate accommodations may include modifying the employee’s work duties, finding an alternate version of the flu shot (or a nasal spray), having the employee wear a surgical mask, transferring the employee to a vacant position, or a leave of absence. Once the accommodation is in place, an employer can continue working with the employee to make sure it remains effective and feasible.
  • Document. In the context of vaccines and otherwise, employers will want to carefully document the accommodation process in writing. Specifically, businesses should keep clear records of precisely what accommodations have been requested, considered, negotiated, and either granted or rejected. Employers may also want to make sure documentation identifies who was involved in the process, when each step took place, whether disciplinary action was taken, and why each decision was made along the way.

Since mandatory flu vaccine programs have been a hotbed for litigation (and a source for the viral spread of misinformation), healthcare providers may want to proceed with caution and make sure their processes and procedures comply with applicable discrimination laws.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.