By Nora Gustafson, Compliance Officer, CEDR HR Solutions

With the start of flu season during a global pandemic, it is as important as ever that employers understand their rights and obligations surrounding vaccines. Not surprisingly, the U.S. Centers for Disease Control (CDC) is stressing the importance of the flu vaccine this year, calling it an "essential part" of protecting you and your family's health this season.

Even so, a large percentage of people do not get the flu shot. And with a COVID-19 vaccine hopefully coming somewhat soon, we know the question on every employer's mind is, "Can I require my employees to get the flu shot or the COVID-19 vaccine once it's available?"

Ultimately, the answer to this question isn't as much about what you can do, but rather what you should do. While employers can require vaccines in most cities and states, the potential repercussions, both legally and practically, are severe enough that you definitely will want to think twice before enforcing this type of policy.

What Should I Do?

For most employers, the correct answer to this question is likely in line with U.S. Equal Employment Opportunity Commission guidance on this topic: You should consider simply encouraging employees to get the vaccine rather than requiring them to do it.

One of the best ways to incentivize employees to be vaccinated is to make it as convenient as possible by scheduling an onsite clinic at the workplace that offers the vaccinations for free. You can also educate your team about the importance of being vaccinated during meetings or through posters and pamphlets, as well as by providing them with information on exactly where in your community they can go to get the vaccine.

The CDC offers a plethora of information on promoting vaccination in the workplace, including a vaccine declination form for health care workers.

What's Wrong with Requiring the Vaccine?

To begin with, some cities and states prohibit mandatory vaccinations in some situations, so you should check your local laws first. These laws generally apply to hospital workers and either require them to have certain vaccinations, prohibit the employer from requiring vaccinations, or require the employer to offer free vaccinations. To help with this research, here is a list of state immunization laws for hospital workers created by the CDC.

Some federal laws also make mandatory vaccinations tricky. Both the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) provide protections for employees who are averse to being vaccinated. They apply to employers with 15 or more employees, but many states also have similar laws that apply to smaller employers.

Under the ADA, employees have a right to an exemption if they have a disability that prevents them from getting immunized. Similarly, under Title VII, an employee with a sincerely held religious belief against immunizations is entitled to a reasonable accommodation.

By requiring vaccinations, you may end up forcing an employee to tell you about a medical or religious issue that you may not otherwise have any reason to know about. This adds extra, unnecessary layers of protection for the employee in this situation.

The way this usually plays out is that an employee will say that they have an immune deficiency or allergy that prevents them from being vaccinated, or that they are part of the Church of Christ, Scientist or the Dutch Reformed Church—the two religious groups in the U.S. that openly discourage vaccination.

When an employee presents this type of issue with getting a vaccine, most employers simply note that in their records and move on. However, as a healthcare employer, you may have heightened concerns around the risks unvaccinated employees pose in the office.

If this is the case, you can't simply turn around and fire them or force a vaccine on them. Because they are raising issues protected by law, you need to engage in an interactive process with these employees to determine whether there is a reasonable accommodation you can provide.

You are able to ask the employee to verify their need for an exemption from the vaccination requirement, most likely with a letter from their church leader or doctor. Next, you will want to determine if there's an alternative way of protecting against the flu for this employee.

Common solutions include having the employee wear a mask or other personal protective equipment (PPE) while working with patients to help minimize the risk of spreading the virus. During the COVID-19 pandemic, you're likely already doing this in your practice. In other cases, particularly if there isn't appropriate PPE available or if you work with high-risk patients, you can make a change in that employee's job duties.

We highly recommend looking at these alternative solutions. Otherwise, your last remaining option may be to terminate their employment, but that is extremely risky to do when the employee has raised a medical or religious issue. You can only legally decline to accommodate and, instead, terminate employment if you can show that doing anything else would pose an "undue hardship" on the company.

As you might imagine, establishing an undue hardship is a murky legal endeavor that can lead to years of litigation, even when it's done properly. It's best to avoid backing yourself into this corner, if at all possible.

This whole process can easily become even more complicated by inviting unwanted discussions about whether or not people "believe in" or support vaccines. Absent a medical or religious reason for those concerns, those beliefs aren't protected by law.

That being said, it's not a can of worms you want to open at work. These discussions are not only controversial and distracting, but also, when mixed with a mandatory vaccine policy, can become protected under the National Labor Relations Act, a law that protects an employee's right to discuss workplace conditions with coworkers.

Hospitals Require Employees to Get Flu Shots—Why Shouldn't I?

Hospitals and other large health care facilities are typically subject to their own set of state laws that don't apply to smaller facilities. These may include mandates that hospital employees stay current on certain vaccinations.

It may also be the case that employees in these facilities are simply strongly encouraged—not required—to get certain vaccines. And the persistent threat of exposure to pathogens in hospitals may serve as enough motivation for those employees to choose to get vaccinated, whether or not it is legally required of them.

What if I Still Want to Require a Vaccine?

If you feel that you have a compelling enough reason to justify mandating vaccinations for your employees despite all of the aforementioned drawbacks, here is what you need to know:

• You need to pay for the cost of the vaccine and for the employee's time spent getting the vaccine.
• The requirement needs to be directly tied to the employee's job duties/description. In other words, there needs to be an objective, job-related reason for requiring a specific vaccine.
• You must consistently enforce your vaccine policy.
• If an employee requests a religious or medical accommodation, you must follow the accommodation process described above diligently and ensure employees are not retaliated against in any way for bringing their concerns forward or discussing them with other employees. Even the appearance of retaliation will get you in trouble.
• All vaccination records should be included in a separate personnel file designated for confidential medical information.
• Create a written policy that explains the compelling reason for requiring the vaccine, the process, confidentiality measures, and how to seek a medical or religious accommodation.

This article discusses vaccines, not COVID testing or other screening procedures. For more information on these topics, check out CEDR's resource page on how to handle COVID exposure in your office.

CEDR HR Solutions believes that better workplaces make better lives. CEDR provides custom, legally compliant employee handbooks, expert human resources support and powerful team management software to owners of more than 2,000 dental, medical and wellness businesses across all 50 states. Its expert advisors work directly with business owners to find workable, compliant solutions to HR and team management issues. Because when you improve your workplace, you improve your life.