With flu season and the ongoing pandemic, employers’ vaccination policies will attract a lot of attention this year including. As employers review their policies and ask themselves whether they can enforce a mandatory vaccination policy (flu or COVID-19-related) there are several points to consider:
Remember the distinction between mandatory vaccinations and employee screenings
(i.e., temperature taking, COVID-19 testing, or symptom screenings). Decisions about mandatory vaccinations need to be based on objective information about the medical condition’s impact on the employees’ ability to perform essential job tasks or if it will pose a significant risk of harm to the workplace health or safety, that’s reasonably accommodated. The Americans with Disabilities Act (ADA) protects workers from discrimination based on disability as well as their private medical information and limits employers’ rights to conduct medical examinations of employees, all of which need to be considered when considering a mandated vaccination policy.
How do you handle required flu shots?
In addition to employee objections, religious beliefs, and collective bargaining agreements that may limit vaccination, the EEOC may also provide protections to workers based on an ADA-covered disability. All require careful consideration and in some cases conversations with employees. If you require a vaccination, ensure that employees who opt out don’t receive negative consequences and medical information is kept private, per HIPAA rules.
What about requiring the COVID-19 vaccine? Until the EEOC provides employer guidance about a COVID-19 vaccine, its approach to the flu shot is a good guide. Employers are advised by the EEOC to encourages flu vaccines versus requiring them, although the latter isn’t prohibited. Based on its flu vaccine guidance, some employers may require a COVID-19 vaccination if its requirement is job-related, your policies and procedures educate employees about the requirement, and that they have the right to seek an exemption or accommodation on the basis of disability or religious belief. State and local laws must also be considered as well as privacy rules for medical information.
Whatever is right for your business, make sure your policies are clear and you educate your employees about them as well as their rights. Continue to keep an eye out for more guidance, especially as a vaccine becomes available.
Additional Resources
CDC Frequently Asked Influenza (Flu) Questions: 2020-2021 Season
EEOC Pandemic Preparedness in the Workplace and the Americans with Disabilities Act
