How to legally require employees to get a flu shot

Take action to keep your workplace healthy this flu season. Consider offering free on-site flu vaccinations) at your business locations. If your business cannot offer flu vaccine clinics onsite, encourage employees to seek flu vaccination in the community. Making annual flu vaccinations part of your workplace wellness program offers many benefits to you and your employees.

Benefits to Employers:

  • Reduces cost by decreasing time missed from work to get vaccinated
  • Reduces cost by reducing absences due to illness, resulting in improved productivity
  • Vaccination often already covered under employee health plans
  • Improves morale

Benefits to Employees:

  • Reduces absences due to sickness and doctor visits
  • Improves health
  • Convenience
  • Improves morale

Resources are available for hosting your own flu vaccination clinic, including a step-by-step guide to help clinic coordinators/supervisors who oversee vaccination clinics. These resources follow CDC guidelines and best practices for vaccine shipment, transport, storage, handling, preparation, administration, and documentation.

Hosting a Flu Vaccination Clinic

Planning

The planning process should also include input from management, human resources, employees, and labor representatives, as appropriate.

  • Get senior management buy-in to support a flu vaccination clinic at the workplace. Frame getting employees vaccinated against flu as a business priority and create a goal aligned with this effort.
  • Identify a flu vaccination coordinator and/or team with defined roles and responsibilities. Occupational health personnel or workplace safety staff may lead these efforts for employers.
  • Determine if you will need to contract with an experienced outside provider of flu vaccination services (such as a pharmacy or community immunizer external icon ).
  • Schedule the flu vaccination clinic to maximize employee participation. Flu season usually begins in the fall. Consider hosting your vaccination clinic(s) before the end of October.
  • Gauge need and demand among employees for flu vaccination. Provide sufficient and accessible flu vaccination in as many business locations as possible.
  • Ask managers and supervisors to allow employees to attend your on-site flu vaccination clinic as part of their workday and without having to “go off of the clock.”
  • Consider offering flu vaccination to employees’ families.
  • Set a goal and show employees how their participation matters. Each year, try to improve upon the percentage of employees vaccinated.
  • If your business hosts a vaccination clinic, follow CDC’s guidelines and best practices, which can be found in Resources for Hosting a Vaccination Clinic. After implementing these best practices, make sure your organization signs the pledge to be recognized as an organization that follows best practices.

Hosting & Promotion

  • Use incentives for flu vaccination to increase participation, such as offering vaccine at no or low cost, providing refreshments at the clinic, or holding a contest for the department with the highest percentage of vaccinated employees.
  • Promote the flu vaccination clinic with the following:
      about the importance of flu vaccination can be posted in break rooms, cafeterias, and other high-traffic areas.
    • An article in company communications (e.g., newsletters, intranet, emails, portals, etc.) can highlight the clinic and flu prevention.
    • Promotional posters/flyers to advertise the date and time of the clinic(s) should be posted in high-traffic areas.
    • Communication promoting vaccination from business leadership directly to employees can encourage participation in the clinic.
    • Use social media channels to promote flu vaccination!

    Logistics

    • Provide a comfortable and convenient location for flu vaccination clinics. Consider the demands of space and need for privacy.
    • Set an example by encouraging managers and business leaders to get vaccinated first.

    Find flu vaccines in your area.
    Everyone 6 months of age and older needs a flu vaccine.

    How to legally require employees to get a flu shot

    April 9, 2021 — It’s not clear that employers have the legal right to require employees to get vaccinated with a vaccine that has only an emergency use authorization (EUA) from the US Food and Drug Administration, according to a new report by the Kaiser Family Foundation (KFF).

    All three of the COVID-19 vaccines available in the United States have EUAs, but none has received full FDA approval yet. Pfizer-BioNTech, however, recently announced it has enough trial data to apply for full approval, according to FiercePharma.

    The question of whether employers can mandate COVID-19 vaccination of their workers is important, not only for the workers but also for the drive to vaccinate enough of the US population to create herd immunity. A significant fraction of the population is still reluctant to get vaccinated or refuses to be inoculated against COVID-19.

    This resistant cohort includes many employees of healthcare organizations. According to a recent survey, nearly half of frontline healthcare workers had not been vaccinated as of early March. Twelve percent of respondents hadn’t decided whether or not to get vaccinated, and 18% said they didn’t plan to receive a COVID-19 vaccine.

    To date, most healthcare organizations haven’t mandated vaccination of their workers. And if the KFF report is accurate, the small number of health systems and post-acute care facilities that do require vaccination may not be on firm legal ground.

    Until recently, all employer vaccine mandates, such as flu shots for healthcare workers, have been for fully approved vaccines, the report noted.

    The post-9/11 statute that established the EUA process says that individuals must be informed “of the option to accept or refuse administration of the [EUA-approved] product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.”

    Legal experts are divided on what this directive means for the legality of requiring vaccination with a vaccine authorized for emergency use, the report noted. The courts have not yet interpreted this provision of the statute.

    Employers that do require vaccination must abide by the December 2020 guidance of the Equal Employment Opportunity Commission (EEOC), which doesn’t address EUA status directly but does say that an employee’s disability must be considered when an employer inquires about his or her vaccination status.

    The employer must also offer “reasonable accommodations” to employees who say they can’t receive a vaccine due to their disabilities, the report pointed out.

    Employer vaccine mandates are also subject to religious accommodations under Title VII of the Civil Rights Act, according to the report, although courts have held that state vaccine mandates are not constitutionally required to provide religious exemptions.

    Not all observers agree with the KFF report’s position on the legality of COVID-19 vaccine mandates while the vaccines are under EUAs. For example, an
    April 7 JAMA Viewpoint by three academic experts refers to the recent guidance from the EEOC on COVID-19 vaccinations. The experts noted that the guidance applies to any vaccine “approved or authorized by the Food and Drug Administration,” suggesting that employers could require vaccinations under an EUA.

    Real-World Experience

    That’s also the view of Houston Methodist, one of the few healthcare organizations that has mandated that its employees get COVID-19 shots. In an interview with Medscape Medical News, Marc Boom, MD, president and CEO of Houston Methodist, said that the health system’s legal counsel had advised the organization that it was on solid legal ground in requiring its staff to get vaccinated as a condition of employment.

    This mandate is fairly recent. Houston Methodist has been aggressively vaccinating its workers since January, and it offered them $500 bonuses to get shots by mid-March, Boom noted. To date, 84% of the employees have been vaccinated, and the number continues to rise. But most of those who have still not received the vaccine are “hesitant or reluctant to be vaccinated,” he said.

    Explaining why Houston Methodist finally required the holdouts to get inoculated, Boom said, “Our sacred duty and obligation is to care for our patients and to care for them in the safest possible manner. Part of that is to make sure that our team is protected and that we minimize the chance of giving COVID to a patient. It’s about patients being at the center of everything we do.”

    The KFF report also noted that there have been discussions about the ethics of requiring employees to get vaccines that are not fully FDA-approved. Boom didn’t dismiss that concern, but he said that it’s moot now that the COVID-19 vaccines have received widespread acceptance across the country.

    “There have been 170 million vaccinations given in the US alone,” he noted. “This is massive real-world experience in addition to thoughtful, large clinical trials. The [EUA] process was accelerated, but the studies were no different than they’d ordinarily be.”

    Legality of Vaccination Mandates

    The KFF report also addressed the broader question of whether COVID-19 vaccination mandates are legal and which entities can require people to be vaccinated.

    The federal government’s authority to mandate vaccinations of any kind is limited, the researchers concluded. The Public Health Service Act authorizes the secretary of Health and Human Services to adopt quarantine and isolation measures to stop the spread of disease among states but doesn’t mention vaccine mandates. “General vaccine mandates…are generally within the purview of state and local governments…with the federal government playing a supporting role.”

    The US Supreme Court upheld a state vaccine mandate over a century ago, based on the state’s police power, the report noted. In that case, a local law required all adults to be vaccinated against smallpox during an outbreak. All states today require vaccinations for school attendance, and the Supreme Court has also endorsed those laws.

    Some states also require adults to be vaccinated, but these laws are very limited, the report said. “Current state vaccination laws for adults are focused on healthcare workers and patients in healthcare facilities, rather than the general population.”

    These state mandates generally require that healthcare workers be offered certain vaccines, and some require documentation of employee vaccination status. But the report didn’t say that any states require these workers to be vaccinated.

    Some private employers require their workers to get vaccines, such as flu shots, in healthcare settings. But states may prohibit vaccine mandates as a condition of employment and instead require that employees have the ability to opt out, the report said.

    Sources

    Kaiser Family Foundation, “Key Questions About COVID-19 Vaccine Mandates”

    Fierce Pharma, “Pfizer, BioNTech eye full FDA approval for COVID-19 vaccine as efficacy stands strong, including against aggressive variant”

    JAMA, “Digital Health Passes in the Age of COVID-19Are “Vaccine Passports” Lawful and Ethical?

    Can a health care provider force all employees to get flu shots, even over an individual’s religious or medical objection? Generally, the answer is no. But employers should review their rights and their employees’ rights to successfully navigate such issues.

    Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of their religion. Employers must accommodate religious observances and practices, absent undue hardship. Their duty to evaluate accommodation requests is often triggered when an employee has a sincere religious belief that conflicts with a mandatory flu vaccination policy.

    The Equal Employment Opportunity Commission (EEOC) uses a very broad definition of “religion.” It includes 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 moral or ethical beliefs. Believe it or not, a federal court recently confirmed that veganism, in some circumstances, can constitute a religious belief that could exempt an employee from a flu shot requirement. So, an employee’s refusal to get a flu shot may not be based on religion at first glance, but the courts might view it that way. Employers should, therefore, ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.

    Questioning a Religious Accommodation Request

    If an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer can seek additional information. The EEOC, however, has suggested that employees can substantiate their beliefs in any form and may not require third-party verification by a clergyman or other source. For example, written materials or the employee’s first-hand explanation may be sufficient to alleviate the employer’s doubts about the sincerity or religious nature of the employee’s professed belief. Because idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is needed, it does not have to come from a clergyman. Others who are aware of the employee’s religious practice or belief could provide such substantiation.

    Denying a Religious Accommodation Request

    An employer may be able to deny an employee’s request for religious accommodation if it can establish that the accommodation is not sought for religious reasons.

    In Fallon v. Mercy Catholic Medical Center, a hospital worker claimed that his employer terminated him for failing to get a flu shot due to his religious beliefs. The U.S. Court of Appeals for the Third Circuit, however, held that the worker’s anti-vaccination beliefs were not religious and that, as a result, Title VII did not protect the employee.

    Although the employee in Fallon did not belong to any organized religious organization, he held strong personal and medical beliefs opposing the flu vaccine. His complaint alleged that he believed that he “should not harm” his own body and that the flu vaccine “may do more harm than good.” In 2012 and 2013, Fallon sought and obtained exemptions based on his personal beliefs, which he explained in a lengthy essay attached to his requests for exemption. In 2014, however, his employer denied his request, explaining that its standards for granting exemptions had changed and asked for a letter from a clergyman to support his request. Fallon could not provide one. The employer suspended and ultimately terminated him for failure to comply with the flu vaccine requirements.

    The court found that Fallon’s beliefs were not religious because they: 1) did not “address fundamental and ultimate questions having to do with deep and imponderable matters,” 2) were not part of a comprehensive belief system, and 3) were not manifested in formal and external signs. Rather, Fallon’s concern was really about health effects of the flu vaccine because he did not believe the scientifically accepted view that it is harmless to most people. The court held that Fallon’s belief, although sincerely held, was medical rather than religious, and did not occupy a place in Fallon’s life similar to that of a more traditional religion. Accordingly, the court affirmed dismissal of the employee’s claim.

    Granting a Religious Accommodation

    Once an employer determines that an employee’s request for accommodation is sincerely based on religion, the employer must then consider how to best accommodate the employee. Simply letting the employee wear a mask during flu season may not be enough. The appropriate accommodation depends on a variety of factors, including whether the employee’s position involves patient contact.

    In EEOC v. Baystate Medical Center Inc., the EEOC claimed that an employer violated Title VII when the only accommodation offered to an employee who refused to get a flu shot based on a religious belief was to wear a face mask at all times while working. But the employee was a recruiter in the human resources department, did not work in a building where patients receive care, and therefore did not have any direct contact with patients.

    Baystate asked the court to grant it summary judgment on the EEOC’s complaint, arguing that the employee was ultimately fired not because of her religious opposition to vaccination but because she was unwilling to wear a mask at all times if she refused the vaccination. The court denied Baystate’s summary judgment motion, holding that the reasonableness of the accommodation constituted a factual question that required a trial.

    Additional Accommodations Employers Should Consider

    Modify the employee’s work duties to avoid patient contact.

    Rearrange an employee’s schedule to reduce patient contact.

    Require the employee to wear a surgical mask.

    Documentation

    In light of the EEOC’s recent activity on this issue, health care employers must explore what reasonable accommodations they can offer employees. If an employer denies a request for accommodation, it must document the justifications for the denial. Employers should keep records of what accommodations have been requested, considered, negotiated, and either granted or rejected. In addition, health care employers should provide training regarding reasonable accommodation under Title VII to their key personnel and ensure that they maintain reasonable accommodation policies and procedures that reflect Title VII requirements.

    By Doug Badger and Paul J. Larkin Jr. | October 26, 2021 | 4:48pm EDT

    How to legally require employees to get a flu shot

    The Occupational Safety and Health Administration (OSHA) is about to require 80 million working Americans to get vaccinated. You may be among them.

    There’s just one catch: OSHA lacks the legal authority to impose a vaccine mandate.

    Declaring that his patience was “wearing thin” with unvaccinated Americans, President Joe Biden on Sept. 9 announced that OSHA would require companies with at least 100 employees to mandate that workers either get vaccinated or submit to weekly COVID-19 tests.

    OSHA sent a draft mandate to the White House on Oct. 8. Once the White House completes its review, OSHA will issue the order.

    And then get sued.

    As we detail in our legal analysis, the courts will almost certainly strike down the OSHA vaccine mandate. Here are a few reasons why:

    • Congress did not place vaccines within OSHA’s purview. OSHA is establishing the vaccine mandate through an “emergency temporary standard.” This highly unusual process allows OSHA to bypass public notice and comment. Federal agencies, including OSHA, typically must submit major rules to public scrutiny before finalizing them.

    To take the “emergency temporary standard” shortcut, the agency must persuade a court that workers are in “grave danger” and that it is “necessary” to protect them against that danger.

    The “grave danger” that an emergency temporary standard must address must come from “exposure to substances or agents determined to be toxic or physically harmful or. new hazards.” A toxic substance or agent is a poisonous element or compound. A substance or agent can be “physically harmful” because it is flammable, explosive, or carcinogenic.

    The danger a virus causes, by contrast, derives from its ability to replicate within a living organism.

    Congress created OSHA to promote workplace safety. OSHA inspectors look for hazards that can potentially harm employees, such as improperly stored chemicals, inadequately lighted or ventilated workstations, or lack of protective equipment (e.g., gloves and hard hats). Vaccines against viruses are an entirely different form of protection and are beyond the scope of OSHA’s mandate.

    • Congress tasked the Department of Health and Human Services with determining the safety, efficacy, and appropriate use of vaccines. Congress authorized the Food and Drug Administration to determine whether vaccines should be allowed in interstate commerce. It empowered the Centers for Disease Control and Prevention to recommend who should receive such vaccines.

    Both agencies are within HHS. OSHA resides in the Department of Labor. Congress has given neither OSHA nor the Labor Department authority over vaccines.

    • Congress did not give HHS the authority to impose a general vaccine mandate. While HHS has regulatory jurisdiction over vaccines, it has no power to impose a general vaccine mandate. If it had, the president would have directed HHS to tell employers to require their workforces to be immunized.

    If Congress did not authorize the agency it empowered to regulate vaccines to mandate their use, OSHA—which has no such power—certainly lacks that authority.

    • If Congress meant to give an agency authority to issue a general vaccine mandate, it would have enacted a law conferring and defining that authority.

    The U.S. has suffered through smallpox, polio, and a raft of other diseases—including the seasonal flu—for which vaccines are available. The federal government has never imposed a general vaccine mandate. Nor has any agency claimed authority to issue such a sweeping mandate.

    If Congress had authorized a mandate, it would not have encrypted it and concealed it in an obscure subsection of the OSHA statute. Congress does not, as then-Supreme Court Justice Antonin Scalia wrote, “hide elephants in mouseholes.”

    In charging ahead with a legally dubious mandate, the Biden Administration is repeating a familiar pattern. In summer 2020, the CDC renewed an eviction moratorium that faced certain judicial doom. The agency nevertheless issued the moratorium on Aug. 3. The high court enjoined it on Aug. 26.

    “There you go again,” Ronald Reagan might have said of OSHA’s vaccine mandate.

    Defenders of the mandate will note that OSHA has established standards regulating bloodborne pathogens like HIV and various forms of hepatitis. Nurses, medical technicians, and others must follow those standards when they draw blood or start IVs, for example.

    Those are distinguishable from the proposed vaccine mandates in at least two ways. First, OSHA followed a notice-and-comment rulemaking process and did not resort to an emergency temporary standard. Second, Congress took the extraordinary step of rewriting the regulation in 2001, leaving no doubt that it intended for the agency to exercise that authority.

    The bloodborne pathogen standard requires health care facilities to offer free hepatitis B vaccines to employees at risk of contracting that illness from needle sticks. Health care workers can decline those hepatitis B vaccines. Thus, even where Congress has given OSHA authority to issue narrowly targeted standards dealing with bloodborne pathogens, the agency did not mandate that workers be immunized.

    In short, Congress has not given OSHA license to mandate COVID-19 vaccines.

    Lawmakers needn’t prohibit OSHA from imposing a mandate that they never authorized the agency to issue in the first place.

    On the contrary, if Congress wants a general vaccine mandate, it must pass a law establishing one.

    Doug Badger is a former Senate and White House policy adviser and currently serves as a visiting fellow at The Heritage Foundation and a senior fellow at the Galen Institute. Paul J. Larkin Jr. heads The Heritage Foundation’s project to counter criminal law abuse, especially at the federal level, as the Center for Legal and Judicial Studies’ senior legal research fellow.

    Editor’s Note: This piece originally appeared on The Daily Signal.

    A Supreme Court case determined that states can require vaccines and the US agency that oversees employment says your employer can, too.

    How to legally require employees to get a flu shot

    Local governments have required vaccinations during previous pandemics and the Supreme Court has upheld their right to do so.

    As the US campaign to distribute coronavirus vaccines continues to ramp up, over 8 million doses have now been administered in the US as of Jan. 11. For the time being, however, only very specific groups of people — mostly health care workers — have been cleared to receive a COVID-19 vaccine . Some of those medical professionals may be required by their employer to get vaccinated, which leads to the question: Can your employer make you get a COVID-19 vaccine?

    The answer is a little more complicated than a simple yes or no. Generally speaking, yes, employers can require employees to receive a vaccine during a pandemic to better ensure the health and safety of their overall staff. However, there are a few exceptions that could exempt you from having to receive a vaccine if your employer makes it mandatory.

    Get the CNET How To newsletter

    Here, we look at what gives employers the right to require their workers to get vaccinated for the coronavirus , as well as what laws are in place to protect you if you have a valid reason for not wanting to get vaccinated yourself. This article is intended to be a general overview and not a source of legal or medical advice.

    How to legally require employees to get a flu shot

    Although your employer can legally require you to get a COVID-19 vaccine, most jobs in the US so far haven’t mandated it.

    US government says employers can require vaccines

    According to the US Equal Employment Opportunity Commission, US employers can require employees to receive vaccinations against diseases that have been recognized as pandemics, like COVID-19. The agency’s guidance dates back to the H1N1 (aka “swine flu”) outbreak of 2009 but was updated in March 2020 to address the coronavirus pandemic specifically. As was the case in 2009, there are two main exceptions to this rule; keep reading for an explanation of both.

    Americans with Disabilities Act protects some people from mandatory vaccination

    The Americans with Disabilities Act requires employers to provide “reasonable accommodations” to workers with medical conditions that would make them unable to take a vaccine. For example, the FDA has recommended that people with certain allergies not get a coronavirus vaccine , but there may be other reasons as well, such as having a compromised immune system.

    Civil Rights Act also protects people with religious beliefs opposing vaccines

    Even if you don’t have a medical reason for not wanting to get vaccinated for COVID-19, you may be able to object on other grounds — Title VII of the Civil Rights Act of 1964 protects people who refuse to take a mandatory vaccine on account of sincerely held religious beliefs. The Equal Employment Opportunity Commission does not require membership in a church or even a belief in God to substantiate religious objections: Strongly or sincerely held moral or ethical beliefs are also covered by the law.

    How to legally require employees to get a flu shot

    The Equal Employment Opportunity Commission has indicated that employers are allowed to require vaccines to protect the health and safety of their employees.

    What happens if you object to receiving a vaccine when your employer requires it?

    Just because you have a valid medical or theological objection to receiving a coronavirus vaccine doesn’t mean your employer has to let you continue working under the same conditions you’ve been used to. All of the above objections require employers to make “reasonable accommodations” if an employee objects to receiving a vaccine. Such accommodations could include allowing the employee to work remotely or take a leave of absence.

    A 1905 Supreme Court case allows employers to require vaccines

    In 1901, a deadly smallpox outbreak in New England prompted local governments to order mandatory vaccinations for everyone in the area. Some residents, however, objected, and one took it all the way to the Supreme Court. The Supreme Court decided in Jacobson v. Massachusetts that the government may impose “reasonable regulations” such as a vaccine requirement during a pandemic, for the purpose of protecting the “safety of the general public.”

    This court case forms the basis for guidance issued by the Equal Employment Opportunity Commission, which makes clear that employers may make similar demands of their workers.

    How to legally require employees to get a flu shot

    Rather than require employees to get vaccinated, some workplaces are preparing to make it easier for workers to access it when their priority group is called.

    How likely is your employer to require a COVID-19 vaccine?

    The industry most likely to require workers get immunized against coronavirus is the same one currently cleared to receive it — health care. Other industries where workers are in a particularly high-risk group for contracting or spreading COVID-19, like retail or meat processing, are more likely to have employers require vaccines for their employees.

    That said, many companies, rather than require coronavirus vaccinations, are focusing on making it easier for employees to get vaccinnated. The two biggest automakers in the US, for example, Ford and General Motors, have decided not to require vaccination of their workforces. Instead, Ford, for its part, has ordered a dozen of its own freezers to store the vaccine in when doses become available for its workers.

    Here are a few other reasons why someone might not get a coronavirus vaccine right away , although the biggest thing stopping you right now might be where you fall in the CDC’s list of priority groups . Not to mention that there are currently two different vaccines, with more on the way, and which type you get might depend on both who you are and where you are.

    How to legally require employees to get a flu shot

    No employer wants their workers coming into the office while coughing up a lung, especially when the flu is running rampant across the country. But, would you actually ask your workers to be vaccinated? And can you fire them for refusing to comply?

    Tristate, a health-care company in Cincinati did just that this year, laying off over 100 workers who failed to receive their flu vaccinations by the December 3 deadline, FOX19.com reported. Similar terminations have popped up in Florida and Pennsylvania, all at hospitals and health-care companies.

    Polly Wright, senior consultant at HR Consultants, said certain states such as Ohio are requiring hospitals have their employees vaccinated the same way other shots have been mandated.

    "States are putting pressure on health care employers because of the way they interact with patients," Wright said. "Here in Pennsylvania, we have had nursing homes do this as well, because the flu spreads like wildfire, and that puts stress on the residents and staff as well."

    Before working at businesses that are in the health-care sector, employers often have their workers go through pre-employment medical screenings. Having them get the flu shot would fall into the same category, Wright said.

    Even a consulting firm or retail business would be able to require workers to get the shot, she said.

    "However, there is less of a ground for employers to terminate you if you choose not to get a flu shot," in those industries, Wright said.

    Employees do have the right to refuse getting the shot, and if they are refusing for religious reasons, or moral grounds, may even have means for a lawsuit if they are terminated and do not work in an at-will state, Wright said. At-will states, including New York, certify that private employers have the right to terminate workers "at-will" and do not need to give cause.

    For example, one nurse from the Cincinati Children's Hospital Center is actually suing for $650,000, after refusing the shot due to her beliefs as a Vegan, according to the Columbus Dispatch.

    So the bottom line is, private employers can ask that their workers be vaccinated, and do have the right to terminate them in at-will states if they so choose.  There are legal risks for doing so, if the worker is using class protection as their reason. Wright said lawsuits are infrequent in this situation, as are terminations.

    "Employers may encourage [vaccinations] because of the devastation [illnesses] can cause to their employees," she said. "And in a non-healthcare setting, there really is no law that says you can't fire someone who won't get a flu shot. But the protections of the EEOC (Equal Employment Opportunity Commission) make it almost impossible to do."

    About one-third of states require hospitals to offer employees flu shots or track their vaccination statuses to help boost flu vaccination rates in healthcare settings, according to a new ranking from Kaiser Family Foundation.

    The ranking is based on an analysis of state laws and immunization websites outlining vaccine requirements for hospitals as of 2020.

    Thirty-three states do not have any flu vaccination requirements for hospitals. The following 17 states require hospitals to offer the flu vaccine and/or report employees’ vaccination status. Here is a summary of each state’s requirements.

    California
    Hospitals must offer vaccine and report status
    Employees can decline a flu shot without an exemption

    Colorado
    Hospitals must offer vaccine and report status
    Employees can only decline flu shot due to medical exemption

    Georgia
    Hospitals must offer vaccine and report status
    Employees can decline a flu shot without an exemption

    Illinois
    Hospitals must offer vaccine and report status
    Employees can only decline flu shot due to medical or religious exemption

    Maine
    Hospitals must offer vaccine
    Employees can decline a flu shot without an exemption
    Medical or religious exemptions also accepted

    Maryland
    Hospitals must offer vaccine and report status
    Employees can decline a flu shot without an exemption

    Massachusetts
    Hospitals must offer vaccine and report status
    Employees can decline a flu shot without an exemption
    Medical or religious exemptions also accepted

    Nebraska
    Hospitals must offer vaccine
    Employees can decline a flu shot without an exemption
    Medical exemptions also accepted

    Nevada
    Hospitals must report employees’ vaccination status

    New Hampshire
    Hospitals must offer vaccine and report status
    Employees can decline a flu shot without an exemption
    Medical or religious exemptions also accepted

    New Jersey
    Hospitals must offer vaccine and report status
    Employees can decline a flu shot without an exemption
    Medical exemptions also accepted

    New York
    Hospitals must report employees’ vaccination status
    Employees can decline a flu shot without an exemption

    Oklahoma
    Hospitals must offer vaccine
    Employees can decline a flu shot without an exemption
    Medical exemptions also accepted

    Oregon
    Hospitals must report employees’ vaccination status

    Rhode Island
    Hospitals must offer vaccine and report status
    Employees can decline a flu shot without an exemption
    Medical exemptions also accepted

    South Carolina
    Hospitals must offer vaccine
    Employees can decline a flu shot without an exemption

    Tennessee
    Hospitals must offer vaccine and report status
    Employees can decline a flu shot without an exemption
    Medical exemptions also accepted

    CLOSE

    How to legally require employees to get a flu shot

    Caution over COVID-19 could make employers more likely to encourage flu shots this season. (Photo: Getty Images)

    Johnny C. Taylor Jr., a human resources expert, is tackling your questions as part of a series for USA TODAY. Taylor is president and CEO of the Society for Human Resource Management, the world’s largest HR professional society.

    The questions are submitted by readers, and Taylor’s answers below have been edited for length and clarity.

    Have a question? Do you have an HR or work-related question you’d like me to answer? Submit it here.

    Question: Can I require my employees to get a flu shot? What if they refuse based on religious/medical reasons? – Anonymous

    Johnny C. Taylor Jr.: Good question. We’ve all seen the signs in the grocery store and in employee newsletters – flu season will be here before we know it, and I expect it may drum up more anxiety than usual this year due to the COVID-19 pandemic.

    In short, it depends on your workplace. As an employer, you may be able to require employees to get vaccinated for the flu if getting sick would greatly impact your company. For example, most health care organizations require vaccinations as a condition of employment because of the risk of exposure to people who are in their care.

    However, concern and caution over COVID-19 could make employers more likely to encourage flu shots across the organization. While workplaces outside of the medical field, child care, or those who work with the elderly might have trouble justifying mandatory vaccines such as the flu vaccine, that doesn’t mean an organization can’t strongly recommend employees get vaccinated – especially in the middle of a pandemic.

    You raise a valid point. It’s important to balance your workplace health and safety concerns with employee rights, including those employees with disabilities and religious beliefs that might prevent them from getting vaccinated.

    If someone claims a health condition that makes vaccination a health risk, you can request the employee to sign a consent form allowing you to learn about their condition and get proper documentation from the employee’s doctor. Additionally, the American with Disabilities Act allows employers to require medical documentation of disability.

    Stay healthy and be well!

    CLOSE

    Public health experts say this year everyone should get a flu shot, if possible. USA TODAY

    Q: As a remote workforce becomes the norm, and as child care facilities start opening up again, do you think employers should start expecting remote employees to have day care arrangements in place vs. giving employees the flexibility to care for young kids while also working? – Anonymous

    Taylor: Candidly, it depends on the employer. Before COVID-19 upended normality, many employers offered telework benefits and expected employees to have child care accommodations in place so they could work productively without disruption.

    Juggling a job and kids at home has never been easy. However, this public health crisis has challenged working parents in ways nobody saw coming. Even if their employer provides child care on-site, or a stipend to supplement the costs elsewhere, facilities remain closed across the country. Not to mention, even if some may have reopened, many parents are leery of dropping their kids off. Add to that, many of these institutions still haven’t announced when, or if, they will reopen. These – not to mention other factors – leave parents and guardians between a rock and a hard place.

    I hate to say it because we’ve heard it a billion times by now. But this moment is truly unprecedented. Even still, many employers are doing what they can by coordinating with employees to understand their needs and do what they can. In fact, 68% of organizations are likely to offer greater flexibility in their work from home policies, while 59% say child care accommodations will be handled on a case-by-case basis.

    In some instances, such as when child care is unavailable for reasons related to COVID-19, some employers can offer emergency paid sick leave and expanded Family and Medical Leave through the Families First Coronavirus Response Act.

    As you noted, child care facilities are reopening in certain areas of the country, and some employees have reestablished relationships with their day care providers. And, some may have family members stepping in to help out.

    But if none of these work for you, I recommend talking to HR to find an alternative, such as personal leave, a modified schedule, or more frequent breaks. Or, perhaps something entirely different and uniquely tailored to you. Ultimately, though, it’s up to the employer to decide how it wishes to structure child care and remote policies and practices.

    For many, this is uncharted territory. But let’s remember: We’re in this together. That makes it critical for employers to not only be flexible and agile, but empathetic and compassionate – especially if an employee can’t find a care provider.

    Employers and employees alike have displayed an incredible amount of resiliency in navigating these challenges and changes together. So, I hope by starting the conversation now, you and your employer can strike a chord and find a balanced solution that works for you both.