Can I require my employees to get a flu shot?

By: Amy Epstein Gluck

It’s the most wonderful time of the year! Are you singing that ditty on your way to work? No? Well, it’s not holiday time, but it is the start of flu season yet again.

This is on my mind because I got a flu shot late yesterday afternoon, felt like crap, and then went to bed while my husband cackled that I’d gotten the flu. (Naturally, we’d been arguing that the flu shot does not give you the flu.)

Anyway, I thought I’d provide some pre-Halloween flu shot info for employers and HR managers:

First, sure, you CAN require employees within your workplace to get a flu shot.

Absolutely. But should you? Is that such a great idea?

Likely, not.

And that question leads me to point 2: what if an employee has a religious objection to a flu shot? What if an employee has an ADA-qualifying disability that prohibits said employee from getting a flu shot?

Just like with other policies, when it comes to disabilities, you may need to modify your policies to engage in interactive discussions with an employee to determine if there are any reasonable accommodations you can make without imposing an undue hardship on your company.

Moreover, if an employee has a sincere religious objection to getting a flu shot, employers should consider the validity of such an objection, or they open themselves up to a claim under Title VII of the Civil Rights Act of 1964 (“Title VII“), which prohibits discrimination based on religion.

My partner Rich Cohen wrote about several cases brought by the EEOC last year based on this exact issue, which you can peruse at your leisure here.

BUT, a workplace, like a school classroom, can be a cesspool for spreading germs, and you don’t want all of your employees out with the flu.

And if you have employees with little ones? Oh boy. Those adorable tiny tots tend to be germ carriers. The one time I had the flu is when my eldest was in pre-school, and I thought that I was literally going to die.


So, a second and perhaps a better option for employers may be not to mandate flu shots but to highly, highly encourage them. How:

  1. Free shots on the premises. People are far more likely to get the flu shot if you provide them with the ability to get their shots onsite.
  2. Get thyself some protection: load your office with some Purel! You can buy them in packs of 8 on Amazon (and with that free shipping, it’s a win, win).
  3. Offer incentives like extra PTO.

Third, and back to the law here, the Occupational Safety and Health Act (“OSHA”) requires employers to provide a safe environment for employees. My understanding is that the severity of the flu may vary—some people get a little sick and are in bed for a couple of days, and some are out for weeks. That’s a big risk for consistent and effective operations.

Employers, you can require that employees go right home when they exhibit flu-like symptoms.  Employees may be able to use paid sick leave—depending on your state and your handbook’s policies.

Good luck, and stay safe this flu season!

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.