The EEOC Catches the Flu: A Cautionary Tale for Employers With Mandatory Flu Vaccination Programs

After enduring one of the worst flu seasons in nearly a decade, there is no question why more employers are instituting mandatory flu vaccination programs. In fact, mandatory flu vaccination programs are increasingly popular for healthcare employees.

No current laws in Missouri or Illinois mandate all health care employees to be vaccinated against the flu. That being said, nursing home employers in Missouri are required to either offer the flu shot to all employees and volunteers who have direct contact with residents, or provide the employees and volunteers with information about how they can obtain the flu shot independently. Similarly, health care employers in Illinois are required to provide all employees with education on influenza, as well as the opportunity to receive the vaccine. Some states, such as California and Maryland, require hospitals to publish their employee vaccination rates to the public.

When instituting a mandatory flu vaccination program, however, an employer should be aware of the possible ramifications of denying or terminating employment for refusal to comply with a mandatory flu vaccination program on the basis of religious beliefs. 

On February 13, 2018, the Equal Employment Opportunity Commission (EEOC) sued a healthcare provider in a Michigan federal court for administering a mandatory flu vaccination program without regard to a job applicant’s request for a religious accommodation. According to the Complaint, Yvonne Bair was offered a medical transcriptionist position with Memorial Healthcare. During her initial medical exam, Bair was informed of the company’s mandatory flu vaccine program. Bair advised Memorial Healthcare that her religious beliefs as a follower of Jesus Christ prohibited her from injecting or ingesting foreign substances in her body.

Bair proposed that she wear a mask during flu season instead of getting a flu vaccination, which was the accommodation the company offered to employees who were unable to get flu vaccinations for medical reasons. In response, Memorial Healthcare’s Human Resources Manager informed Bair that they would willing to allow her to use a nasal spray instead of the flu vaccination as a reasonable accommodation. Bair indicated that the nasal spray is prohibited by her religious beliefs that she not inject or ingest foreign substances. Memorial Healthcare subsequently withdrew its employment offer to Bair.

In the complaint, the EEOC asserts that Memorial Healthcare deprived Bair of equal employment opportunities and rejected her on the basis of her religious beliefs. The relief sought includes a permanent injunction barring Memorial Healthcare from engaging in any employment practice that discriminates on the basis of religion, an order mandating the company to implement policies, practices, and programs to provide equal employment opportunities to persons of all religious backgrounds, and an order awarding Bair back pay, and for past and future losses including emotional pain and suffering, as well as punitive damages.

This is not the first time that the EEOC has filed a lawsuit over a mandatory flu vaccine program. Actually, the agency has recently taken a fairly hard-line stance in pursuing healthcare employers who terminate employees based on refusal of flu vaccinations for religious reasons. In 2016, the EEOC sued a hospital in Pennsylvania who failed to provide religious accommodations to six employees who refused the flu vaccine.  The case settled for $300,000. Another hospital, in North Carolina, recently settled a similar case in January 2018, for $89,000.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religious beliefs. This includes refusing to accommodate an employee’s sincerely held religious beliefs or practices, unless the accommodation would impose an undue hardship for the employer. An employer asserting an undue hardship defense to providing religious accommodations must show that the proposed accommodation creates more than a de minimis cost or burden.

According to the EEOC, administrative costs for an accommodation such as rearranging an employee’s schedule would be a de minimis cost, and therefore, would not usually be considered an undue burden.  On the other hand, being required to hire additional employees to provide an accommodation to another employee could constitute an undue burden.

The EEOC recommends encouraging employees to get flu shots, rather than making flu shots mandatory. To do so, employers should consider offering flu shots at the workplace or providing employees with information about where flu shots are available locally.

If your business has a mandatory flu vaccination program, we encourage you to contact one of Danna McKitrick’s experienced employment or healthcare lawyers to carefully evaluate the program to avoid a misstep that may open the door to litigation.