The flu season brings additional challenges to hospitals and other health care providers, as they experience an increase in volume of patients who have the flu or flu-related symptoms or who are at higher risk of serious complications from the flu. Health care providers have implemented flu vaccination polices to protect vulnerable patients as well as employees and their families. However, flu vaccination policies can create a legal risk for health care providers, particularly when those policies mandate vaccination for employees.

In a recent case, the EEOC represented three employees who claimed they were terminated for failing to get vaccinated, as they claimed being vaccinated violated their religious beliefs in violation of Title VII of the Civil Rights Act.  The court, when denying the employer hospital’s motion for summary judgment, held that the hospital had not shown that it had reasonably accommodated the employees' religious objections to vaccination or that a reasonable accommodation would have caused an undue hardship for the hospital.  On the other hand, the court ruled, the EEOC had not proven the opposite.

In April 2016, the EEOC sued the hospital, alleging it  fired at least three employees whose sincerely held religious beliefs forbade them from getting flu shots--the hospital's policy mandated flu vaccination for employees unless they were granted  an exception. The hospital argued that the employees were fired because they missed the hospital's deadline to request an exemption from the policy.  The judge observed that the hospital had granted approximately 75% of employees' exemption requests over several preceding years and a jury should decide whether allowing employees to file exemption requests beyond the policy's deadline was a reasonable accommodation.  According to the judge, a jury should also decide whether exempting employees who work with "vulnerable [patient] populations" from the vaccination policy would "increase costs to the hospital."  A jury would also need to determine whether the employees held sincere religious beliefs that prohibited them from getting a flu shot.

Mandatory flu vaccination policies can also create legal issues when an employee's health status could be compromised or harmed if vaccinated. Flu vaccinations can present a serious health risk to an employee with a history of severe reaction to flu vaccines or an ingredient in the vaccine, or has or may have Guillian-Barre syndrome.  Health providers with mandatory vaccination policies will inevitably face the question:  What do we do when an employee refuses to be vaccinated?  To minimize risk, the employer should engage in an interactive dialog with the employee to identify the basis for the refusal and potential accommodations.  Many hospitals have allowed an employee to continue to work without vaccination provided the employee wears a mask.  Other potential accommodations include transfer to a position with no patient contact or no contact with flu-vulnerable patients, or a leave of absence.  Drafting an effective and lawful policy, and consistent application of the policy, are essential to minimizing the legal risks when mandating that employees be vaccinated.