Flu Season: Can You Make Your Employees Get a Flu Shot?

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:

1. Violate the affected workers’ contract or collective bargaining agreement;
2. Discriminate against workers on the basis of religion or disability; or
3. 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:

1. 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]

2. 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.

3. 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.