Can we make flu shots mandatory? ? Business Management Daily ...

Q. Because this season?s flu outbreak was so severe, next fall we would like to require all our employees to get a flu vaccine. We hope this will cut down on employee absences during flu season. Would such a policy be lawful?

A. Requiring employees to get vaccinations, such as an in??fluenza vaccine, is a common practice among health care employers. That is because employees in the health care industry have close and frequent contact with vulnerable patients.

While uncommon in other industries, a mandatory vaccine policy would not be unlawful.

As a general rule, most employers may institute a mandatory vaccine policy and fire workers for not complying with the policy in accordance with the employment-at-will doctrine (meaning employers may fire employees for any reason that is not unlawful). Exceptions include instances in which the employee is working under a contract or a labor agreement that bars such a policy.

Additionally, employers must be wary of violating anti-discrimination laws, particularly in cases in which an employee?s religious beliefs prevent him or her from taking the vaccine.

Note that mandatory vaccine policies recently have come under attack by employees arguing that they are covered by one of these exceptions.

For example, a group of hospital workers in Rhode Island sought to stop their employer ?from implementing a regulation which permits the Director to mandate vaccinations, declare a ?flu emergency,? require health care workers to wear surgical masks, and punish workers who decline, in violation of the United States and Rhode Island Constitutions.?

As a result, in December 2012 a labor organization representing the workers filed a lawsuit against the employer in federal court.

In another recent case, an Ohio worker who was fired after refusing to get a flu shot is accusing her employer of religious discrimination.

The customer service representative, who is a vegan, objected to her employer?s mandatory inoculation policy because the flu vaccine contains animal products. The worker is accusing her employer of violating her civil rights and discriminating against her.

Recently, a federal judge allowed her religious discrimination claim to go forward, reasoning that it is plausible that the worker ?could subscribe to veganism with a sincerity equating that of traditional religious views.?

Fortunately, employers can still promote a healthy workplace by exercising one of many alternatives to instituting a mandatory vaccine policy.

Employers may strongly encourage?rather than require?their employees to get the flu shot. In that vein, some employers make it easier for employees to get the vaccine by hosting flu clinics in the workplace or by offering employees discounts or vouchers on vaccinations.

Some companies ease their attendance policies during the height of flu season. Alternatively, employers might increase the number of sick days available to employees or might permit workers to work from home if their job duties permit. These alternatives encourage workers who are exhibiting flu-like symptoms to stay home rather than come to work and risk infecting co-workers.

The Centers for Disease Control and Prevention recommends many of these options in its materials it offers to businesses. One of the most useful resources is an educational toolkit called Make It Your Business To Fight The Flu: A Toolkit for Businesses and Employers.

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