How to Accommodate Healthcare Staff Who Refuse to Get Flu Shots
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Injuries and illnesses are common at any workplace, and that is why workers’ compensation insurance is very significant. It grants benefits to the injured worker based on a medical chart review, and provides coverage for lost wages and medical expenses. The focus of the employer must be on getting the employee back to work as soon as possible to reduce costs and improve productivity. Firing an employee who is injured and is on workers’ compensation, or one who does not follow certain workplace mandates due to some religious conviction or some other reason can bring severe consequences. That is where “accommodating” employees becomes an important consideration. Employers may often find that their workers refuse to follow certain mandates or requirements primarily made to protect them. Let us consider this aspect of employees with an example. The Society for Human Resource Management recently carried an article on their website that highlighted this issue. The reference is to healthcare employees who refuse to get flu shots as a protection measure. Many workers protest in this regard, claiming that they are entitled to an accommodation based on religion, disability, or pregnancy. When workers decline the shots, some healthcare providers transfer or even terminate such employees. Terminating an employee can be a risky proposition. The Equal Employment Opportunity Commission (EEOC) filed 3 lawsuits against healthcare employers in 2016 over compulsory flu shot programs because they didn’t sufficiently accommodate employees with religious accommodation requests. Employers are expected to conduct individualized evaluations of employees’ requests for accommodation, when there is a potential issue with the vaccine based on a disability. Patricia Pryor, an attorney with Jackson Lewis in Cincinnati, points out that employers should •
Listen to the concerns of employees, consider what they are requesting, and how that request would affect the employer’s workplace.
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If the requested accommodation is not a practical one, consider another one that may be feasible.
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Employers should clearly communicate with employees requesting accommodation, respect their requests and document their evaluation.
Some US states require vaccinations and such other preventive measures for healthcare workers, while some others do not. The Centers for Disease Control and Prevention recommends vaccinations for all healthcare employees. The EEOC holds that when an employee does not have direct contact with patients, it is not an undue hardship (which is
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defined as a significant difficulty or expense) for that person to refuse a flu shot on religious grounds. One accommodation sometimes granted to workers who refuse flu shots is a mask. However, this accommodation could have issues if the people they are talking to cannot understand what they are trying to communicate while wearing the mask. In a March 2012 informal discussion letter, the EEOC advises that workers may be entitled to refuse a mandatory flu vaccine based on disability, religion, or pregnancy.
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Accommodation Based on Disability
Employees may be granted a reasonable accommodation and permitted to be exempt from a mandatory flu vaccination based on a disability as defined by the ADA or the Americans with Disabilities Act unless the employer can show an undue hardship. ➢
Accommodation Based on Religion
An employer may be required to grant an employee a religious accommodation and excuse him/her from mandatory flu vaccinations based on the employee’s sincerely held religious belief, practice, or observance unless the employer can demonstrate that doing so would cause the employer undue hardship or more than a de minimis cost to the employer’s business operations. In a hospital setting, employers must take into consideration the following factors when assessing whether there is an undue hardship. ➢
The assessment of the public risk posed at a particular time
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Availability of effective alternative means of infection control
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The number of employees who request accommodation
“Religion” can include not only organized religions but also religious beliefs that are “new, uncommon, not part of formal church or sect, only subscribed to by a small number of people or that seem illogical or unreasonable to others” as well as non-theistic ethical or moral beliefs. The EEOC also advises in one of their discussion letters that if an employer has an objective basis for questioning the sincerity or religious nature of a particular belief or practice, the employer would be justified in seeking additional information supporting the employee’s beliefs. If an employer grants a religious accommodation and excuses a healthcare worker from getting a flu shot, the employer may impose additional infection control such as wearing a mask if doing so for non-discriminatory, legitimate, and non-retaliatory reasons.
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Requests for religious accommodation could be denied if the employer successfully establishes that: ➢
The employee behaved in a manner significantly inconsistent with the professed religious belief
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The accommodation asked for is a particularly desirable benefit that is likely to be requested for secular reasons
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The timing of the accommodation request is suspect, such as if it follows an earlier request by the employee for the same benefit for secular reasons
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The employer has reason to believe that the accommodation is not sought for religious reasons
Accommodation Based on Pregnancy ➢
The EEOC advises that refusing to accommodate a pregnant individual’s request not to be vaccinated could lead to a disparate treatment claim.
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Impairments resulting from pregnancy may be considered disabilities under the ADA and entitle the employee to a reasonable accommodation.
There are certain important things for employers to consider. ➢
Carefully evaluate the facts surrounding the business need for implementing the mandatory flu shot policy, and the employee’s accommodation request
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Consider and discuss possible reasonable accommodations with the employee such as transferring the employee to another position that doesn’t require the vaccine; granting the exemption, or having the employee wear a face mask for protection
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Obtain more information if necessary by interacting with the employee
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Do not jump into conclusions or fire an employee merely on the basis of his/her refusal to accept the vaccination, without engaging in the interactive process and considering in detail the employee’s reason for claiming an exemption
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Enforce the flu vaccination policy uniformly for all employees
To arrive at the solution that best suits its legitimate and reasonable business needs and concerns, employers should consult with counsel. This is very important before deciding to terminate an employee just because she/he refused a flu shot.
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