November 2014 HR Brain Teaser

Brain Teaser Courtesy of EPLI Pro™

Required Flu Shots?

Flu season is upon us and according to the Centers for Disease control, between 5 and 20% of the population get the flu each year, costing U.S. employers some ten billion dollars each year. With peak season in January and February, there is a potential that up to 12% of your workforce could miss two or more days during those months.

With the potential of lost employee productivity, it is easy to see how cost effective a flu vaccination program could be.

So this month our question is:

Can you require your employees to get flu shots?

A.  Of course not, that’s just crazy talk.

B.  Yes.

C.  No, but it is not as crazy as one might think.

Answer:  C   Actually, mandatory vaccination programs are not unheard of in hospitals and other health care settings.  The theory of at-will employment would suggest that an employer may impose such a policy as a condition of employment as long as no anti-discrimination laws are violated and the requirement is not contrary to a collective bargaining agreement or written employment contract.  

Mandatory vaccination requirements run the risk of violating the American with Disabilities Act (ADA). The Equal Employment Opportunity Commission (EEOC) stated that even during a pandemic, an employer covered by the ADA and Title VII may not compel everyone to get a flu vaccination. Anyone with a disability that would preclude getting a flu shot must be granted reasonable accommodation. Accommodation should also be considered for those with sincerely held religious beliefs against vaccinations.

The EEOC also provides some common sense advice: “employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” For the average employer, not everyone has to participate for a vaccination program to be effective. Most people, when given a choice between momentary discomfort and two days of porcelain gastrointestinal misery are going to choose the needle. So consider a free vaccination program for your employees or simply facilitating a low cost, workplace flu shot.

Vaccinations do put some people at risk, and some religions find this practice objectionable. You may even have a few who will resist just because they are squeamish.

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