Ask the legal expert ... about mandating flu shots

Share this content:
Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP
We've decided that next flu season we're going to mandate our staff members get flu shots. Are we on firm legal ground?

The enforceability of an employer's mandatory flu vaccination policy is governed by both federal and state law.  

Federal law does not prohibit an employer from implementing a mandatory flu vaccination program. However, any such program should include an exemption for medical contraindications and an exemption for religious purposes.

Determination of religious exemptions can be difficult. However, Title VII of the 1964 Civil Rights Act is instructive. It protects an employee from discrimination based on the employee's religious beliefs and also requires the employer to reasonably accommodate an employee's religious beliefs, practices and customs if the employer can do so without undue hardship.

A person can hold a bona fide religious practice or belief even if that practice or belief is not affiliated with any religious group. The Equal Employment Opportunity Commission has taken a broad view of “bona fide religious practice” to include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”  

If an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer may seek additional supporting information, including third party documentation. However, the third party need not be a church official or member, but someone aware of the employee's religious practice or belief.

Additionally, enforceability of a mandatory flu vaccination policy is decided on a state-by-state basis. You should contact legal counsel to determine whether your policy fits state law.

Please send your legal questions to John Durso at
ltcnews@mcknights.com.