We are heading into flu season, and this year brings heightened concern due to the COVID-19 pandemic and the possibility that the two viruses will simultaneously hit the workforce over the winter months, with potentially grave health consequences for some. As such, this year employers may find it more important than ever to adopt a mandatory flu vaccination policy. However, recent years have seen a wave of litigation by employees challenging such policies. Although most prevalent in the health care industry, where such policies follow CDC recommendations that workers who have direct contact with patients be vaccinated, employers in other sectors are beginning to adopt flu shot policies in an effort to prevent employee exposure to this sometimes deadly virus.

Legal challenges usually arise when the employer is unwilling to make an exception to its mandatory vaccination policy for pregnant employees, or those who have religious objections, although there have been a few successful challenges based on non-medical or non-religious reasons.

The EEOC has addressed the issue, noting that mandatory flu shots may be permissible, provided that the employer provide reasonable accommodation for religion under Title VII, and for pregnancy or other disability under the ADA. The bottom line for employers: (1) ensure there is a legitimate basis for your flu shot mandate, especially if operating outside the health care industry (this should be easier to do now that we are in the midst of a deadly pandemic); (2) communicate up front that employees may request an exemption, and carefully consider and document all such exemption requests; and (3) if unsure a request is valid, seek legal advice before taking adverse action against any employee who refuses the flu vaccine. Flu season brings enough worries about ending up in the hospital; employers should take precautions to ensure they don’t end up in the courthouse as well.

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