Slideshow Dos and don’ts of mandatory flu vaccine policies

  • November 13 2013, 3:20pm EST
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1. Do evaluate the business need for the policy.

Whether it be concern for patients, clients, or customers or, rather, a need to ensure that your workforce is less likely to be on leave due to a flu outbreak, an employer must be prepared to identify its reasonable business interest if the policy is challenged.

2. Do consider what type of policy suits business needs.

Some employers are implementing mandatory policies for all employees to receive a flu shot. Others are only requiring that certain categories of employees receive a flu shot, i.e., those with regular access to patients or individuals with compromised immune systems. Still others are implementing a policy that “strongly encourages” flu vaccinations.

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3. Do review any applicable collective bargaining agreements.

Under the National Labor Relations Act, a flu vaccination policy is a mandatory subject of bargaining. This means that a unionized employer cannot unilaterally implement such a policy without giving the union notice of the policy and bargain over the policy if the union requests. However, as set forth under recent National Labor Relations Board case law, a union may waive a right to bargain over such a policy by way of a management rights clause.

4. Don’t refuse to engage in an interactive process with any objecting employees.

Employers should be prepared to work with an employee’s health or religious objections to receiving a flu shot. The Equal Employment Opportunity Commission has taken the position that employees may be exempt from a mandatory vaccination requirement based on an ADA disability or a “sincerely held religious belief, practice, or observance.”

5. Don’t terminate any employee who refuses a flu shot without due diligence.

Don't fire workers for refusing a flu shot without engaging in the interactive process if they are objecting for health or religious reasons. Further, any disciplinary measures should be uniformly implemented in the case of employees in violation of the policy. Employers may also want to consider progressive discipline for first-time offenders, e.g., issuing a warning letter for an initial failure to show proof of a flu shot or failure to wear a facemask.

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6. Do ensure that any policy is enforced uniformly.

Require proof that employees have received a flu shot. In the case of objectors, seek a waiver that the employee is unable or objects to vaccination and then engage in the interactive process to agree upon a reasonable accommodation.

7. Do consider making flu shots available to employees onsite.

This will maximize compliance with any flu shot policy.

8. Don’t implement a policy without contacting your state’s Department of Health or any other related agencies.

These agencies can provide guidance on the manner in which vaccine policies should be implemented for various categories of employers or regarding possible accommodations for objecting employees.