Flu Shot Requirements: Can You Do That?

The suit targets Mercy Health St. Mary's, which is a hospital in Grand Rapids.

The EEOC says Mercy Health illegally rescinded a job offer after the applicant refused to get a flu shot for religious reasons. It claims that Mercy Health arbitrarily denied the applicant's request for an exemption and did not tell him why or how his exemption request was deficient.

The hospital's alleged conduct violates Title VII Civil Rights Act of 1964 (Title VII), says the suit, which is seeking monetary relief for the applicant as well as an injunction that bars the hospital from engaging in similar alleged conduct going forward.

Not the first time

This is not the first EEOC suit to claim that an employer violated Title VII by denying an exemption to a flu vaccine requirement.

In December of 2022, the EEOC filed a similar suit against Children's Healthcare of Atlanta, alleging that the pediatric healthcare system violated Title VII when it denied a maintenance employee's request for a religious exemption to the system's flu vaccination requirement. The system had granted the same request in prior years before denying it and terminating the man's employment, the suit said.

In 2016, the agency recovered $300,000 on behalf of six health center employees who were fired after refusing to get a flu vaccine for religious reasons. In that case, the EEOC alleged that the employer granted several medical-based exemption requests while denying all exemption requests that were based on religion.

And in 2018, the agency recovered $89,000 on behalf of Asheville, North Carolina, hospital employees who were fired after presenting religious objections to a flu vaccine requirement. There, the hospital imposed what the EEOC called an arbitrary deadline for filing an exemption request.

Flu shot, Title VII and the ADA

Under Title VII, employers must reasonably accommodate the sincerely held religious beliefs of applicants and employees unless doing so would create an undue hardship. Under that law, "undue hardship" is anything more than a de minimis cost to the operations of the employer's business.

The Americans with Disabilities Act (ADA) similarly requires employers to reasonably accommodate applicants and employees who have a disability, as that term is defined by the statute.

Although the undue hardship defense also exists under the ADA, it is the same in name only. Under the ADA, undue hardship means significant difficulty or expense. That means it is more difficult for employers to show undue hardship under the ADA than it is to show undue hardship under Title VII.

What is the best route to take when it comes to the flu shot?

The EEOC has long advised employers to encourage rather than require their employees to get the flu vaccine, and mere encouragement does not create legal risk. The Centers for Disease Control and Prevention has several tips for promoting vaccinations in the workplace.

Even in employment settings where a vaccination requirement makes more sense in light of the increased risk of exposure and transmission (like health care settings), a blanket vaccination requirement that bans or unduly limits requests for religious or disability-related accommodation will likely lead to a great deal of trouble.

Instead, employers that choose to implement a general flu vaccine requirement should engage in a good-faith, interactive process of determining whether reasonable accommodation is possible whenever a disability-based or religious exemption is sought.

Here are some potential accommodations when it comes to the flu shot, courtesy of the Job Accommodation Network:

• Permitting employees to wear a mask instead of getting the vaccine
• Permitting employees to use other types of personal protective equipment
• Temporarily assigning job duties whose performance does not require vaccination
• Reassignment to a position that does not require vaccination.

The bottom line

The safest route is to encourage rather than require employees to get a flu shot. If you decide to require vaccination and are covered by the ADA and Title VII, be prepared to assess requests for disability-related or religious exemptions to the generally applicable flu vaccine requirement.