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EEOC Weighs In On Mandatory Flu Shots

The U.S. Equal Employment Opportunity Commission (EEOC) has shed some timely light on the issue of employee requests for exemption from mandatory flu vaccinations as a religious accommodation. In a recently released informal discussion letter, EEOC Legal Counsel Peggy R. Mastroianni explained that employers are permitted to seek supporting information to verify their employees' sincerely held religious belief or practice when seeking such an exemption. Also, the employer may impose other infection control measures, such as wearing a mask, if the exemption is granted.

In a letter dated December 5, 2012, written in reply to an inquiry from a member of the public, Mastroianni noted that if no undue hardship would result, an employer may be required to excuse a person from a mandatory vaccination policy as a requested religious accommodation under Title VII, or as a disability accommodation under the Americans with Disabilities Act (ADA).

Verification requirement

In the case of a requested religious accommodation, the employer is allowed to obtain supporting information. Quoting the EEOC Compliance Manual, Section 12, Mastroianni wrote: "since idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is needed, it does not have to come from a church official or member, but rather could be provided by others who are aware of the employee's religious belief or practice." When an employer "makes reasonable inquiries for such supporting information, the employee must cooperate or he may not be entitled to accommodation."

The inquirer in this case had forwarded to the EEOC a policy that included clergy verification, and a letter from the employer that offered the inquirer a chance to meet with the decision maker to explain the request. The employer's letter also stated that the requested information need not come from a clergy member or congregant, but rather from "a person who can attest that your religious beliefs are sincerely held and do not permit you to receive the influenza vaccine." Mastroianni noted that Title VII case law "has permitted appropriate employer as well as judicial inquiry into these issues."

Undue hardship, other infection control measures

The EEOC attorney also explained that even if the employee provides the requested verification information, the employer may deny the request if it would pose an undue hardship under the circumstances, "or may impose other infection control measures on those excused from vaccination, such as a mask requirement, if not done for retaliatory or discriminatory reasons."

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