CAN REFUSING A NEEDLE COST YOU YOUR JOB?

The trend of employers requiring employees to be vaccinated for influenza is growing.  The growth rate of this workplace trend is undisputedly in part driven by the U.S. government.  The U.S. Department of Health and Human Services (DHHS)’ “Healthy People 2020” initiative states a goal of vaccinating 90% of the nation’s healthcare workers with the influenza vaccine annually by 2020.  A separate DHHS goal aims to vaccinate 80% of all U.S. employees annually with the influenza vaccine by 2020.  In addition to the government pressure and general health concerns associated with vaccinating employees, employers often have strong business interests in vaccinating employees (i.e., healthier workers equates to less sick time and more productivity). 

However, employees can have a variety of reasons for balking at or refusing an employer’s request for being vaccinated.  Reasons for employee objections may include personal autonomy or ideology (“Nobody should be able to force me to put anything into my body.”), scientific skepticism (“I don’t believe the flu shot works.”), medical fear (“I may be one who has a rare allergic reaction.”), and/or some variety of religious conviction (“My religious beliefs do not include vaccines – God gave us a body with an immune system, and if we live healthy and pray, we won’t get sick.”).

Hence, the question: can employers require employees to get a flu shot or terminate the employee if he/she refuses the vaccine? 

Yes, in general, Idaho employers may create such “comply or termination” policies with regard to the flu vaccine, because of the “employment at will” rule that applies to the vast majority of employer-employee relationships in the state. 

However, an employer cannot create a zero-tolerance policy and have a wholesale refusal to consider objectors’ reasons in all cases. 

As an employer, there are a couple of exceptions to that general rule of employment at will that can be implicated when an employee refuses a flu shot that may trump or alter an employer’s right to terminate the employee.

The terms of an employment contract may dictate what an employer can require of an employee and may preclude termination for refusal to obtain a vaccination.

A collective bargaining agreement between an employer and a labor union may alter the employer’s relationship with some of the employees and may prevent the employer from unilaterally enforcing a flu vaccine requirement.

For example, in federal litigation over vaccine requirements in Washington and Nevada, union members (nurses and hospital staff) argued requiring them to wear a mask if they are excused from taking the vaccine was a change in the terms and conditions of their employment and creation of such rule was done so without the approval of the union and its members in violation of the existing collective bargaining agreement.

Federal equal employment opportunity laws and anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) prohibit discrimination on the basis of religion and disability and can be utilized or offer protection to employees who refuse the vaccinations.

• These laws require employers to make exceptions to generally applicable work rules (i.e., requiring flu vaccines) to accommodate for an employee’s conflicting religious belief or practice or qualifying mental or physical impairment, unless the accommodation would cause a hardship on the employer’s business.
• An employee who cloaks themself in a religious objection or who claims a disability is not automatically protected from being fired for refusing a flu shot.  The laws make clear that balancing these interests – whether religious or medical – must be done on an individualized, case-by-case basis.  These laws create an intricate balance between employees’ religious and medical needs and employers’ interests in efficient and profitable administration of their businesses.

Additionally, while employers are under no legal obligation to accommodate wholly personal, non-religious ideological or political objections to the vaccine, once a procedure is in place to consider objections and make appropriate necessary modifications for religious and legitimate medical needs, an ethically and economically savvy employer might consider whether they can likewise provide non-mandatory accommodations in order to avoid losing otherwise valuable and loyal employees.  For example, where feasible, employers may want to consider reassigning unvaccinated workers to more remote/non-public areas or requiring that they wear masks throughout the influenza season.

INSIGHTS FOR EMPLOYERS

If you, as an employer, require employees to be vaccinated against the flu, carefully consider any objections of any employee to such a mandate.

In considering the objections raised by employees, consider all possible exceptions to the general rule of “employment at will” including collective bargaining agreements and federal equal employment opportunity laws and anti-discrimination laws before terminating the employee.

Where feasible, consider accommodating wholly personal (non-protected) employees’ objections to the flu shot prior to termination.

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.