Flu Season: Can You Make Your Employees Get a Flu Shot?
August 7, 2018 1:47 pm
Short answer: Yes, as long as you can show that the vaccination is necessary for health
and safety and that your vaccination policy doesn’t:
- Violate the affected workers’ contract or collective bargaining agreement;
- Discriminate against workers on the basis of religion or disability; or
- Violate OSHA whistleblower protection laws.
General Rule: Mandatory Vaccination OK
In general, employers are allowed to police the workplace and deal with health and safety
hazards. And because most employment is “at will,” workers can be fired for not
following these policies.
Conflicting Signals from OSHA on Mandatory Vaccination
No OSHA standard specifically addresses mandatory flu vaccine. But OSHA’s 2009
guidelines for healthcare facilities, say it’s “advisable” for such facilities to “encourage
and/or provide seasonal influenza vaccination for their staff, including volunteers, yearly,
during October and November.” (emphasis added)
Admittedly, this language is pretty wishy-washy. However, OSHA issued an
Interpretation Letter which, in addition to re-stating the “encouragement” shtick, adds the
following line: “Although OSHA does not specifically require employees to take
[seasonal] vaccines, an employer may do so.”
However, OSHA’s request for information about a proposed rule requiring health care
and other facilities to adopt infection control plans to prevent infectious illnesses like
pandemic flu and SARS seems to go the other way. The notice suggests that OSHA’s intent is to treat flu and other vaccines like
the Hepatitis B vaccine under the Bloodborne Pathogens standard which requires
employers to make the vaccination available to exposed employees but allow them to
decline it.
3 Situations When Mandatory Vaccination Is Not OK
You need to take all of this with a grain of salt. First of all, OSHA guidelines and
Interpretation Letters are not laws; second, OSHA’s pronouncements on mandatory flu
vaccination address healthcare facilities. For obvious reasons, infection control is an
imperative in such facilities. So if you’re not in healthcare, relying on the OSHA
guidance is risky unless the need to control infection risks at your workplace is at least as
compelling. For example, OSHA would be more likely to approve mandatory vaccination
at a food processing operation than a standard warehouse.
More importantly, you also need to realize that OSHA is not the sole arbiter and that
mandatory vaccinations are illegal if they run afoul of other employer legal obligations:
- It Violates the Employment Contract
Forcing workers to get vaccinated could violate the terms of the employment
contract—or collective bargaining agreement if the workers belong to a union.
Example: A Washington hospital requires employees to get a flu vaccination to be
considered “fit for duty.” Nurses sue and the court rules that unilaterally implementing
the policy violates the hospital’s duty under the CBA to collectively bargain over all
employment terms and conditions [Virginia Mason Hospital v. Washington State Nurses]
- It’s Religious or Disability Discrimination
Mandatory vaccination might also violate employment discrimination laws. According to
guidance issued by the EEOC , getting vaccinated might violate a worker’s
“sincerely held religious belief, practice or observance;” the Americans With Disabilities
Act would also kick in if the worker has a disability that prevents him from taking the
vaccine.
In either case, exempting the worker from the policy might be one of the “reasonable
accommodations” you’d have to make to accommodate the worker’s religion/disability.
- It’s OSHA Whistleblower Discrimination
Section 11(c) of the Occupational Safety & Health Act makes it illegal to “discharge or in
any manner discriminate against” a worker for filing a safety complaint or exercising
other rights under the OSHA law. As noted by OSHA in the Interpretation Letter
mentioned above, firing a worker for defying a mandatory vaccination policy could be a
violation of the whistleblower protections of Sec. 11(c) if the worker’s refusal is based on
a “reasonable belief” that he has a medical condition, e.g., an allergy, that could in
serious injury or death if he gets the shot. ( Click here to find out how to discipline such
workers without violating Sec. 11(c).)
How to Protect Yourself
Keep in mind that there’s more to life than law. Thus, even if it’s legal, mandatory
vaccination is apt to stir up a hornet’s nest at your workplace. A better option may be to
encourage workers to get shots without ordering them to—especially if you’re not in an
industry like health care where protecting patients is of paramount concern.