Each year employers, especially in health care and those working with the elderly, require that employees receive the influenza vaccine, although there have always been legal constraints to mandating the flu vaccine without exception.

The stakes are higher this year, with employers not just in health care, but largely all industries, especially in education, retail, hospitality, public safety, and general business, wanting to compel their employees to take the flu vaccine to lessen the likelihood of flu-like symptoms that could be misconstrued as a COVID-19 infection, causing quarantines and disruption.

Now that a COVID-19 vaccine may be imminently forthcoming, employers also need to determine whether requiring the new vaccine can be mandatory, keeping in mind the vaccine may be made available to only certain members of our population until later next year.

In 2009, the U.S. Equal Employment Opportunity Commission addressed the question of whether employers can mandate the influenza vaccine in its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance:

Question: May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

EEOC response: No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

It further stated, “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”

Although the EEOC has declared the COVID-19 infection a “direct threat” to the workplace, the federal agency has yet to weigh in on whether employers can make the COVID-19 vaccine mandatory. Although it updated the pandemic guidance, it has yet to update the question about the vaccine requirement.

In a 2012 informal discussion letter, the EEOC responded to an employer’s question about alternatives to a mandatory flu vaccine, stating, “You also specifically asked whether an employer that grants a religious accommodation excusing a healthcare worker from a mandatory vaccination may impose additional infection control practices on the worker as a result, such as wearing a mask. While an employer covered by Title VII may not impose such practices for discriminatory or retaliatory reasons, it may do so for legitimate, non-discriminatory, and non-retaliatory reasons. Whether the employer’s motivation for imposing additional infection control measures was discriminatory or retaliatory would turn on the facts of a given case.”

The Centers for Disease Control and Prevention only recommends making the annual flu vaccination part of an organization’s annual wellness program. The CDC also has not weighed in on making the COVID-19 vaccine mandatory in the workplace.

Earlier this summer, the EEOC lost a lawsuit against Baystate Medical Center in Massachusetts after the hospital terminated a human resources professional who refused to take the flu vaccine because of an alleged religious objection and then refused to consistently wear a face mask, an alternative offered by the employer. The facts of the case arose long before the current COVID-19 pandemic.

The hospital’s influenza policy offered employees the option of either receiving the flu vaccine or wearing a face mask provided by the hospital at all times during the flu season.

The employee stated that she held a religious belief against defiling her body, including getting a flu shot.

In lieu of receiving the flu shot, the hospital allowed her to wear a face mask, consistent with its policy. She had no religious objection to the face mask but found it difficult to effectively communicate when wearing it so she removed it when speaking with others. She had no direct contact with patients.

She was placed on leave, then terminated for consistently refusing to wear the mask.

The EEOC sued on her behalf claiming religious discrimination and failure to provide a reasonable accommodation for her religious beliefs.

In granting judgment for the hospital, the court noted that wearing the mask was a requirement by the employer and the worker had no religious objection to this rule.

Employers should assess the legitimate business reasons for requiring a flu or a COVID-19 vaccine and should consider the least restrictive way to accomplish their goals.

Any employee who provides a religious or disability-related objection needs to receive an individualized interactive discussion to evaluate any reasonable accommodations that can be provided unless the accommodation creates an undue hardship for the workplace.