Newsletter: Can employers require workers to get flu shots?
Good morning. I’m Rachel Schnalzer, the L.A. Times Business section’s audience engagement editor, back with our weekly newsletter. In case you haven’t heard, flu season is officially here. Doctors are imploring people to get their annual flu shot, especially in light of the COVID-19 pandemic’s continued effects across the country.
Employers take a variety of approaches to flu vaccines. Some simply encourage sick workers to stay home, while others organize free-of-charge vaccination clinics. Some even mandate flu shots. I spoke with Michelle S. Strowhiro, an employment advisor and litigator at McDermott Will & Emery, about what employers and workers should know.
This conversation has been condensed and edited for clarity.
Is it legal for an employer to mandate flu vaccines for employees?
Yes, employers can generally require flu vaccines for their employees. I say that with a big asterisk, because there are several exceptions. The prevailing guidance from the federal Equal Employment Opportunity Commission is that even though employers can require flu vaccines, the best practice for most employers would be just to encourage vaccines.
Under what circumstances can a worker be granted an exemption?
Employees may have a right to push back on a requirement for a vaccine for certain employers. For example, under the federal Americans With Disabilities Act, if an employee has a medical condition that doesn’t permit him or her to get a vaccine, employers may be required to provide an accommodation. Likewise, in California, the Fair Employment and Housing Act may provide similar accommodations for employees.
An employee may be required to provide medical documentation supporting the accommodation request. From there, the employer, the employee and sometimes the physician have a discussion or several discussions about accommodation options.
Along the same lines, there are both federal and state laws that may provide exceptions for employees if they have religious accommodation needs.
However, this is somewhat employer-specific, and there’s really not a one-size-fits-all answer.
How do the rules vary by employer and profession?
Depending on the employer, there could be more or less wiggle room for employees to seek an accommodation or an exception from the rule.
In certain industries, such as healthcare and child care, employees may have less of a right to an accommodation, because the employer may deem that it is necessary to maintain safety for other employees as well as for their patients or clients.
A lot of factors will come into play, including the employee’s specific role and job duties, and whether there could be ways to maintain workplace safety while permitting the unvaccinated person to do his or her job. For example, an individual could be granted a temporary request to work remotely without a vaccine in lieu of coming into the office with a vaccine, or be reassigned to a back-of-the-house position where there wouldn’t be close contact with others.
How might these rules apply to a future employer-mandated COVID-19 vaccine? What about employer-mandated coronavirus tests or antibody tests?
If employers eventually require a COVID-19 vaccine, the process to provide accommodations for employees may look a little different given the virus’ highly contagious nature and the potentially severe repercussions of contracting it. The Equal Employment Opportunity Commission has not yet issued specific guidance on a COVID-19 vaccine or how laws will interact with employer-mandated COVID-19 vaccines. The facts will be the determining factor of whether the rules for employer-mandated COVID-19 vaccines are similar to rules for employer-mandated flu shots.
The competing factors will be an employee’s rights under the Americans With Disabilities Act or Fair Employment and Housing Act or the rights of religious accommodation, versus the employer’s duty to maintain a safe workplace free from known hazards. It’s about finding the right balance of allowing the employer to maintain safety in the workplace without overstepping or failing to accommodate a reasonable accommodation request.
The Equal Employment Opportunity Commission has stated that employers can require employees to get the viral COVID-19 test before they set foot in the workplace. But employers cannot require an antibody test, because that would violate important rights under the Americans With Disabilities Act. The only reason an employer can require a viral test is because there is a potential imminent hazard for someone who is currently infected with the virus to come into the workplace.
Are there risks for employers who mandate a vaccine?
Yes. One, it puts employers in a position where they are required to engage in the interactive process with anyone who is objecting to getting the vaccine. And if employers decide not to implement certain accommodations, they could be at greater risk of facing discrimination or wrongful-termination claims than if they had a “strongly encouraged but not required” vaccine policy. However, it’s likely that with a vaccine-optional approach, fewer employees will get vaccinated, which could pose a safety risk.
Another potential risk is if employers mandate a vaccine that is ultimately shown to be unsafe. For example, the Equal Employment Opportunity Commission has indicated that if an employer is mandating and administering COVID-19 viral tests, the employer is responsible for the accuracy, safety and reliability of the test. It’s very possible that a similar standard could apply to an eventual COVID-19 vaccine. If an employee is required to get a COVID-19 vaccine and they fall ill, the employer could potentially face liability.
Apart from mandating vaccines, what can employers do to reduce the chances of their employees getting sick during flu season?
Many employers have taken the approach recommended by the EEOC, which is to recommend flu vaccines and make them available free of cost for employees.
Having a health and safety plan in place is important. In California, all employers must have an injury and illness prevention program. In many cases, the plans are very simple — reminding employees to wash their hands frequently, to use tissues, to sanitize high-touch surfaces. Behaviors that are now, thanks to COVID-19, in everyone’s vernacular.
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