Should employers encourage employees to obtain seasonal flu vaccines and offer them in the workplace?

Answer:

Yes -- although a flu vaccine won't protect against pandemic influenza, flu shots can help individuals stay healthy.  Providing employees with educational information on the benefits of flu vaccines and posting this information in the workplace will also serve as a reminder to employees to get their shots.  Employers should keep track of annual influenza vaccinations for employees to determine the overall health status of their workforce.  Under the Americans with Disabilities Act¹ (ADA) employers are required to keep employees’ medical information confidential (i.e., maintained on a separate form and in a separate medical file).

Employers that wish to offer flu vaccinations in the workplace may do so as an employee health program under the ADA.  Employee health programs must be offered on a voluntary basis to employees at a particular worksite.  Where an employer singles out particular employees for the vaccine outside of an employee health program, the ADA would be implicated.  Specifically, an employer would likely need to meet the ADA’s standards to ask many of the pre-requisite medical questions which would accompany the vaccination.  Accordingly, before asking any disability-related question (i.e., a question likely to elicit information about a disability), the employer would need to have a reasonable belief, based on objective evidence, that the particular employee has or has been exposed to a medical condition which would impair her ability to perform essential job functions (i.e., fundamental job duties) or pose a direct threat (i.e., significant risk of substantial harm) in the workplace.

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¹The EEOC enforces Title I of the ADA.  The ADA’s provisions in regards to disability-related inquiries, medical examinations, and confidentiality apply to all applicants and employees of covered employers, regardless of whether those individuals have disabilities, as defined by the ADA.  By contrast, other ADA requirements apply only if an applicant or an employee is an individual with a disability under the ADA.

It cannot be definitively established in advance, however, whether a future pandemic influenza would rise to the level of a disability under the ADA.  Therefore, this answer provides guidance for employers that would comport with the ADA even if a future pandemic illness was found to be an ADA disability. 

Note: As an overall matter, employers should be guided in their relationship with their employees not only by federal employment law, but by their own employee handbooks, manuals, and contracts (including bargaining agreements), and by any applicable state or local laws.

Not all of the employment laws referenced apply to all employers or all employees, particularly state and local government agencies. For information on whether a particular employer or employee is covered by a law, please use the links provided for more detailed information. This information is not intended for federal agencies or federal employees -- they should contact the U.S. Office of Personnel Management (OPM) for guidance.

Last Updated: 01/25/2008