ILMA Compoundings - October 2020 - 40

COUNSEL COMPOUND

Vaccinate or Terminate:
Mandatory Flu and
COVID-19 Shots
By Jeff Leiter

F

lu season has arrived while the
COVID-19 pandemic continues.
The Centers for Disease Control
and Prevention is urging people to
get the flu vaccine this fall to protect
themselves and to conserve health
care resources, especially with concerns over a resurgence of COVID-19.
While it is an annual topic, employers' mandatory vaccination policies
will attract increased scrutiny this
"season," in part, because one or more
COVID-19 vaccines are expected to
become available later this year or in
early 2021. As we have seen over the
years, mandatory vaccination policies
frequently evoke deeply personal
responses.
Let's start with the legal framework.
Occupational Safety and Health
Administration's "general duty clause,"
along with parallel state laws, requires
employers to maintain a workplace
free from recognized dangers. The
Americans with Disabilities Act (ADA)
prohibits discrimination on the basis
of disability and limits employers'
rights to make related inquiries and
to conduct medical examinations of
employees. The U.S. Equal Employment Opportunity Commission
(EEOC) has not accepted mandating
the flu vaccine and requiring wearing
a mask as an ADA accommodation.
Although the EEOC has advised
employers to encourage flu shots

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OCTOBER 2020

| COMPOUNDINGS | ILMA.ORG

rather than require them, it has not
prohibited employers from requiring
the shots, especially when the flu
outbreak is severe. Employers, thus,
are trying balance their legal obligations with the rights of individual
employees.
So, can private-sector employers,
including ILMA members, mandate
employees get a flu shot and/or
COVID-19 vaccine as a condition of
employment? Then, can employers
enforce these mandatory vaccination
policies?
In the absence of a state or local law
to the contrary, and keeping at least
two caveats in mind, employers may
require employees to get vaccinations
to protect them from contracting and
spreading the flu. While some states
and localities require flu shots for
employees in certain positions, such
as in health care, education and retail
settings, other employers' right to
require flu shots is not unlimited.
The first caveat is that the EEOC's
flu shot guidance states that, even
during the current pandemic, an
employee may be exempted from
a mandatory flu shot requirement
at work based on an ADA-covered
disability. The second caveat is an
employee may be exempted from the
requirement if taking the shot would
violate his or her sincerely held religious beliefs, practices or observances.

An employer,
thus, needs to
ensure that it has an
objective rationale for
requiring flu shots that
is tied to employees'
job descriptions."
Under either caveat, an employer
must engage in, and then document,
an interactive and iterative process
with the employee to determine
whether a reasonable accommodation
would enable him or her to perform
essential job functions without
compromising workplace safety.
Reasonable accommodations may
take many forms. Keep in mind that
employers are not required to provide
an accommodation that would pose
an undue hardship, although this
evaluation will vary depending upon
whether the requested accommodation is based upon a disability or
sincerely held religious beliefs.
In addition, some states, like
California and New York, consider
employees' objections to mandatory inoculations, grounded in the
"anti-vax" movement, to be protected,
outside political activities.
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