Employers and Mandatory Flu Shots. Can an Employer Require a Flu Shot?

In light of recent healthcare news, it’s not unrealistic to be asking yourself: Can my employer require me to get an influenza vaccination? The answer largely depends on where you live and what type of work you do. For example, in Rhode Island, all healthcare workers are required to get a flu vaccine. 

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Whether your state is a right-to-work state or employment at-will state can also make a difference. This article specifically focuses on the rules and regulations governing those that work in the state of New York. If your employer is requiring that you obtain a flu vaccine as a contingency of your employment, contact Moshes Law Firm today for information on how we can help you determine if you qualify for an exemption. 

Are Employer Mandated Flu Shots Legal in New York?

Many organizations provide guidance on employer mandated vaccination programs. From the Equal Employment Opportunity Commission (EEOC) to the Occupational Safety and Health Administration (OSHA), employers have access to information to guide them in the right direction when it comes to creating vaccine policy within the work-place. 

Each organization provides their own guidance on whether or not employers can make vaccines mandatory and provides suggestions for how to make the workplace healthier. 

While you can contract the flu at nearly any point in the year, fall and winter are most often referred to as flu season. From December-May, flu cases spike drastically. As the push for flu vaccines increases as the end of the year approaches, your employer may start encouraging you to get a flu shot. 

But, can employers go beyond encouraging you, to making it a requirement of your employment?

Yes, an employer can require you to get a flu vaccine, but there are several caveats.  The EEOC identifies two specific exemptions to mandatory flu vaccines: those with disabilities under the ADA and those with sincerely held religious beliefs that fall under Title VII.

In both of those cases, your employer is allowed to request documentation from you supporting your exemption. 

What OSHA Says About Employer Vaccination Policies

According to OSHA, an employer may require you to obtain a flu vaccine. While often promoted as simply being for the health and safety of employees; flu vaccination can also impact an employer’s bottom line. Employers argue that mandatory flu vaccination of all employees reduces the number of sick days taken and prevents groups of employees from falling ill at the same time. As this has a direct impact on how a business operates, many employers require vaccination, especially in fields where face-to-face human contact is high. 

Those who take care of the elderly or other high-risk patient categories are often required to be vaccinated to reduce the chances of transmission. With the Covid-19 pandemic, many are looking to current flu vaccination policies to see what may lie ahead for mandatory covid vaccination. 

OSHA does not mandate vaccinations but it does state that employers can mandate flu vaccinations as part of their job requirements. For general guidance, the CDC (Center for Disease Control) recommends that everyone aged six and over, obtain a flu vaccine, every flu season.  In fact, the later in the year you obtain your vaccine, the better. Some studies show that obtaining the vaccine too early, can actually cause it to be at its weakest during the height of flu season. 

How Can An Employee Obtain a Mandatory Flu Vaccine Exemption

Medical and religious exemptions exist and are allowed in New York specifically to protect employees from participating in practices that would be harmful to them in some fashion. However, documentation to support your exemption is required. 

Having Guillain-Barré Syndrome, an auto-immune disease, is one example of a health diagnosis that can be used as an exemption for an employee to avoid getting the flu vaccine. It is not recommended that those with the syndrome get the vaccine. Thus, if an employee has a health condition that prevents them from getting the flu vaccine then they may present a letter to their employer from their doctor outlining the pertinent information.

Vaccination Rules May Vary By Employer And Profession

While each employer may set their own rules for whether or not to make a flu shot mandatory, they are still required to abide by state and federal regulations. If you feel that you’ve been fired unfairly or are suddenly being treated unfairly for submitting an exemption to your employer for a mandatory flu vaccine, then you should contact Moshes Law PC today to discuss your mandatory flu vaccination case. Discrimination, for any reason, is wrong, and Moshes Law can help. 

And while exemptions do exist, in some cases, such as working with those that are immunocompromised, they won’t be enough. In those situations, you can’t be forced to get the vaccine, but the employer isn’t required to keep you employed either. 

Is the Flu Shot Mandatory In NY? To Mandate or Not to Mandate

Employers need to understand that a line exists between mandating vaccines and employees suffering vaccination injuries. While injuries are rare, they do occur and it very well could land the employer in court if the employee falls ill as a result of the flu vaccine. 

When choosing whether or not to mandate a flu vaccine as part of their onboarding process, employers need to look at the big picture. If the state does not mandate a flu vaccine, they need to have a clear and objective policy explaining the mandate to employees. 

What Are Risks For Employers Who Mandate a Vaccine?

With the possibility that New York may be mandating Covid vaccines in the future, employers may be questioning their role in the vaccination process. While the EEOC says that employers can mandate employees get the flu vaccine, the better route would be to simply encourage them to get the vaccine. 

Offering rewards for proof of vaccination or holding vaccination fairs are good ways to make the flu vaccine available to but not mandatory for employees. Employers should make it as easy as possible for their employees to get vaccinated. 

Best Practices for Employers considering Mandatory Flu Vaccination 

For employers deciding whether or not to mandate a flu vaccine, remaining informed on state and religious requirements can be key. Making certain that everyone involved in the hiring process understands and knows what to do if reasonable accommodations are requested is very important.  

There is an interactive process for determining valid exemptions submitted by employees. It is not up to the supervisor or manager to determine the validity of the claim, which is why documentation can be requested as mentioned earlier. Further, an employer should ask themselves: 

1. (if the exemption request is religious) Is there a reasonable belief that the employee’s religious beliefs are not sincerely held;
2. will this create a hardship?; and
3. would the employer grant a similar accommodation for other reasons, such as for a disability?

If an employee presents a valid exemption to a flu vaccine, the employer can consider a few things:

• Does this employee work with others?
• Can this employee wear a mask to reduce any potential transmission to others?
• Can this worker perform their job from home?
• Are there any collective bargaining agreements in place that affect this decision? 

When and if reasonable accommodations can be made, employers may allow unvaccinated employees to remain employed. In this case, the flu vaccine for the employee would not be mandatory. 

All information about the vaccine must be clearly presented to the employees. Written communication is specifically recommended by OSHA. It’s also important to understand the role of the employee. The amount of exposure a person has to others will vary greatly.  A waitress in a busy restaurant will be face-to-face with tons of new people every single day. A person who cleans corporate offices at night, by themselves, will see few, if any, people during their shift. Thus, the employer’s exposure risk for the entirety of staff will vary. Ultimately, employers should consult with an attorney about the rules within each state and recommendations. 

Aside from the above, encouraging a clean and healthy work environment is helpful. Providing hand sanitizer and reminding employees to wash their hands frequently can help reduce the spread of germs within the workplace without manding vaccination. 

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Have you been injured due to a mandatory flu shot policy by your employer? Were you forced to get a flu vaccine at work despite having a qualified exemption? 

Employers have to provide reasonable accommodations to their employees when mandating vaccines as a contingency of employment in New York. New York employers are required to allow employees to submit a request for exemption from a mandatory flu vaccine. If your employer is refusing to allow you to submit for an exemption, contact Moshes Law office for a free consultation.