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get your flu shot

Can Employers Require Employees to Get the Flu Shot?

As the pandemic continues and winter approaches, employers are considering mandating that their employees get the flu shot. The federal Occupational Safety and Health Act (OSHA) requires an employer to maintain a workplace that is free of recognized hazards. Seemingly, this would permit an employer to require the flu vaccine to help protect the workplace. However, the Americans with Disabilities Act (ADA) limits an employer’s ability to make medical-related inquires and/or conduct medical examinations of employees — except in limited scenarios. Specifically, the medical exam or inquiry would need to be job-related and consistent with business necessity. This “necessity” would need to be based on a reasonable belief that an employee’s ability to perform essential job functions will be impaired by a medical condition, or the medical condition will pose a significant risk of substantial harm to workplace health or safety. The employer’s belief must be based on factual information, not just subjective perceptions or irrational fears of the medical condition. Essentially, there has to be a specific and reasonable basis to believe that requiring a flu vaccine is necessary to keep the workplace safe from significant risks and/or to permit employees to be able to perform their jobs.

For these reasons, in industries where employees serve and interact with populations who are more susceptible to contracting the flu (such as healthcare or early education), employers are likely permitted to (or required to in some states) require flu vaccination. Employers outside of these industries, however, face the challenge to articulate the basis (other than the general intention to keep the workplace safe) of the need for such a policy.

A Safer Option? 

Interestingly, the federal agency that enforces federal anti-discrimination laws, the Equal Employment Opportunity Commission’s (EEOC), does not explicitly prohibit mandatory vaccination policies, but instead recommends that employers should consider encouraging employees to get the flu vaccine. To that end, the CDC has provided guidance on promoting vaccination in the workplace and has highlighted the importance to receive a flu vaccination for this flu season in particular during the ongoing pandemic. (here).

Cosmo Insurance Agency is a full-service independent insurance agency based in Hackensack (Bergen County) and Lakewood (Ocean County), New Jersey that offers an all-encompassing range of insurance options for both individuals and businesses. Cosmo keeps its promise to assure an efficient and creative approach to the services we offer. Each of our clients experience a personalized and long-term relationship with us. Our New Jersey based team of health brokers guides our clients in helping them choose the most cost-effective options. By incorporating our knowledge of the insurance guidelines for healthcare, employee benefits, life insurance, self-insurance, dental, disability, and long term care insurance, we keep our clients up-to-date with affordable plans that cover all their specific insurance needs.

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2024