Are Mandatory Flu Shots Unconstitutional? Can an Employer Require a Flu Shot?

woman researching about mandatory vaccines at work

During the pandemic, controversy has arisen about employers mandating vaccines for influenza, COVID-19, and other infectious diseases. In industries where workers interact with vulnerable groups, such as children and the elderly, more and more companies have required employees to get vaccines to protect the safety of customers or patients.

Many employees who object to these requirements want to know: Are mandatory flu shots unconstitutional?

While U.S. citizens have rights under federal and state laws that protect their employment in some instances, employers can legally mandate vaccines as a job requirement.

At Sadaka Law, our experienced vaccine injury lawyers defend clients across the United States who have suffered from injuries due to a vaccine. Read on to learn more about whether flu shots can be mandatory, the exceptions to vaccine requirements, and whether your employer can terminate you for refusing to get a flu vaccine.

Does the Law Require Flu Shots?

The laws regarding workplace vaccination policies vary by state. Some states, like Rhode Island, have passed laws requiring all healthcare workers to get the influenza vaccine. Typical state laws surrounding healthcare worker vaccinations include:

  • Healthcare facilities must assess the vaccination status of their workers
  • Healthcare employers must offer vaccinations to their employees
  • Healthcare workers must get the vaccine or have a valid medical or religious reason to decline
  • Healthcare workers must wear personal protective equipment (PPE) if they are unvaccinated

If an employer wants to implement mandatory vaccinations for its workers, it should consider whether its proposed policy violates labor or employment law in its state.

Can Employers Make Flu Shots Mandatory?

Employers have the right to establish vaccinations as a job requirement for health and safety reasons as long as it relates to the job and is necessary for business. For example, many healthcare employers require their workers to get the flu vaccine because they work around individuals with a high risk of developing complications from the flu. These high-risk individuals include the following:

  • Seniors (over the age of 65)
  • Children
  • Pregnant women
  • Immunocompromised individuals

Exemptions from Mandatory Vaccine Requirements

pregnant woman checking a picture of an ultrasound

Are mandatory flu shots unconstitutional? No, but the laws protect the rights of people who require an exemption for a valid reason. The U.S. Equal Employment Opportunity Commission (EEOC) maintains two primary exemptions from mandatory vaccines for employees:

  1. An ADA-qualified disability that prevents safe vaccination
  2. Religious beliefs outlined under Title VII of the Civil Rights Act

An employee with a qualifying disability according to the Americans with Disabilities Act (ADA), which puts them at risk when receiving a vaccine, does not have to comply with their employer’s immunization requirement.

According to guidance from the Centers for Disease Control and Prevention (CDC), individuals with severe allergies to the primary ingredients in the vaccine or disorders like Guillain-Barre Syndrome should not receive the flu vaccination for their own safety.

Additionally, the EEOC says that employers should grant exemption from mandatory vaccination requirements to pregnant women who request it. Some complications due to pregnancy may also qualify as disabilities under the ADA.

Non-healthcare employers may not meet the “business necessity” requirement of implementing a mandatory vaccination policy. Instead, these employers can encourage employees to get the vaccine and offer on-site vaccinations. They can also provide their workers with information on how and where to get the vaccine.

Can You Refuse Your Company’s Flu Shot?

Title VII of the Civil Rights Act of 1964 exempts employees from receiving the vaccine if they object because of a sincerely held religious belief or practice. The definition of religion encompasses any closely-held beliefs, including veganism. Since flu shots contain chicken eggs, getting the vaccine would be against a vegan’s convictions.

If you object to the flu shot, your employer must engage in a process to determine if you’re eligible for exemption and, if so, work out reasonable accommodations to avoid hardship for you. Solutions your employer could come up with include:

  • Exempting you from the influenza vaccine requirement
  • Allowing use of personal protective equipment (mask, etc.) as an alternative
  • Reassigning you to a position that doesn’t require the vaccine
  • Allowing you to work from home

If you object to the flu shot due to a disability, your employer can request documentation that proves you have an impairment that puts you in danger if you receive the vaccine.

Can You Get Fired For Refusing To Get A Flu Shot?

Whether you can get fired for refusing a mandatory vaccination depends on the details of your employment. Every state in the U.S., except Montana, allows employers to have at-will employment policies, which means they can fire employees at any time for any reason.

However, some federal and state laws prevent employers from firing workers for specific reasons. Exceptions that would make it illegal for an employer to fire an at-will employee include the following:

  • Anti-discrimination laws prevent employers from firing workers because of race, age, religion, or gender
  • Laws preventing firing an employee for reporting illegal activity, harassment, discrimination, or health and safety violations
  • Laws preventing firing a worker for taking medical or family leave, taking leave to serve in the military, or scheduling days off to vote or do jury duty

The law assumes you to be an at-will employee if your employer doesn’t specify otherwise. If you signed a contract, or if the employee handbook establishes that your company terminates only for a good reason, you are not an at-will worker. In that case, your employer can only fire you for the reasons stated in the contract or manual. You might be able to take legal action if your employer violated the agreement.

Undue Hardship Defense

man and a child praying

Despite the protections from the ADA and Title VII, your job still may not be safe. Employers have the defense of “undue hardship” that allows them to terminate the employee refusing vaccination if the accommodations require significant expense or burden on the business.

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If you refuse to get the vaccine due to a religious belief, your employer can claim undue hardship if the cost or difficulty is more than minor or trivial. Employers can only refuse disability accommodations if they can prove they cause a significant burden to the business.

Employers in some industries, like healthcare, education, and retail, have an easier time claiming undue hardship because their businesses are customer- or patient-facing.

The COVID-19 virus falls under the ADA’s definition of a “direct threat” because of the significant risk of harm to other individuals in the workplace, allowing employers to mandate COVID vaccines, take employees’ temperatures, and ask about their symptoms.

The flu vaccine, however, typically doesn’t fall under the same category.

Injuries You Can Get From a Flu Shot

For most people, flu vaccines are very safe. Millions of Americans receive the vaccine yearly to keep themselves from getting or spreading the influenza virus. The CDC recommends that everyone over six months old get the vaccine every year.

Some people might experience side effects after a flu shot, including:

  • Soreness or swelling from the injection
  • Headache
  • Fever
  • Muscle aches
  • Nausea

Guillain-Barré  Syndrome

Researchers have found a connection between flu vaccine injections and Guillain-Barré syndrome (GBS), an autoimmune disorder. The risk is exceedingly rare, according to these studies, and similar trials could not identify an association between GBS and the vaccine. It’s more likely (though still highly infrequent) for GBS to occur after infection with the flu virus.

Individuals with GBS might experience symptoms such as:

  • Weakness, numbness, or tingling spreading from the arms and legs
  • Muscle aches and pains
  • Issues moving or walking
  • Difficulty speaking or breathing
  • Slow reflexes
  • Fatigue

Allergies

If you’re allergic to any of the ingredients in the flu vaccine, you might see these signs of a severe allergic reaction within minutes to hours after getting the injection:

  • Wheezing, difficulty breathing
  • Swelling around the lips or eyes
  • Weakness, dizziness
  • Fast heartbeat
  • Hives

The CDC recommends that individuals should not get the flu vaccine if they have a severe allergy to eggs or other vaccine ingredients, have ever had GBS, or are not feeling well.

Shoulder Injuries

A shoulder injury related to vaccine administration (SIRVA) can occur when a medical worker injects the vaccine too high up on your arm. The injection site should be in the thickest part of your upper arm, in your deltoid. If the shot is too high, it can damage your shoulder’s tissues, ligaments, and tendons.

Symptoms of SIRVA include shoulder pain and trouble moving your shoulder, and these signs typically appear within 48 hours of getting the vaccine. Researchers have observed that over-the-counter pain medicine doesn’t help SIRVA symptoms.

Vasovagal Syncope

Flu vaccines can sometimes cause sudden fainting, a condition known as vasovagal syncope. It occurs when the vaccine causes reduced blood flow to the brain. Symptoms you might experience before fainting include the following:

  • Lightheadedness
  • Nausea
  • Paleness
  • Sweating

While fainting isn’t inherently dangerous to your health, you could sustain an injury from falling while unconscious. If you hit your head, you might suffer a traumatic brain injury.

Are Some Vaccines Mandatory To Take?

an adult getting a vaccine

Since vaccine mandates vary state by state, the answer depends on where you live and your circumstances. Some states have laws that mandate vaccines for healthcare workers, and many more have regulations for children and teens enrolling in schools.

All 50 states require K-12 students to get immunization for the following infectious diseases:

Only six states require a yearly flu shot for child care or pre-school enrollment, but no states mandate it for K-12 students.

No states currently mandate private employees to get any kind of vaccine for work, and some states have implemented bans on mandatory vaccines in the workplace. For example, Florida bans vaccine requirements for all private and public sector employers and fines violators $10,000 per employee.

Our Team at Sadaka Law Can Help If You Have Flu Vaccine-Related Injuries

So, are mandatory flu shots unconstitutional? In most places in the U.S., they are not, but that doesn’t mean you can’t claim a vaccine-related injury.

Our skilled legal team at Sadaka Law helps clients all over the country through the process of filing their cases and fighting for fair compensation for their injuries. If you have an injury from the flu vaccine, call us today at 1-800-810-3457 or fill out our online form to start your free case review.

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