Can Massachusetts Employers Require Flu Shots or Face Masks?

Yesterday, I went to the doctor for my annual physical. He asked me if I wanted a flu shot. I’ve never gotten a flu shot before, but the doctor convinced me to change that habit. I asked him if his office requires flu shots. He said yes, but that employees can choose to wear a mask instead if they prefer. Seemed time to re-share our post on flu shots in the workplace.

Can My Massachusetts Employer Force Me to Get a Flu Shot?

Generally, yes, your employer can force you to get a flu shot. There are, however, two exceptions to this general rule.

First, your employer may not be able to force you to get a flu shot if you object on legitimate religious grounds. Federal and state law prohibit discrimination on religious grounds. They also both require employers to make reasonable accommodations to workplace policies to accommodate employees’ religious beliefs. Failing to modify a mandatory flu shot policy due to someone’s religious objection is a problem zone. In January 2018, a hospital in North Carolina settled a claim for $89,000 with Christian and Muslim employees who were fired after refusing to get a flu shot based on their religious beliefs.

Employers will have more leeway in this regard if an employee objects on non-religious grounds. But, courts have consistently held that what is and is not a “religion” is something they are “ill suited” to judge. As a result, courts have recognized that non-traditional faiths are entitled to be recognized as “religions” for discrimination purposes. This includes the Church of Body Modification, for example, but not the Church of the Divine Flying Spaghetti Monster.

Second, your employer may not be able to force you to get a flu shot if you object because you suffer from a disability. Federal and state laws also require employers to provide reasonable accommodations to disabled employees, something that may require a modification to a mandatory flu shot policy. A court in West Virginia recently decided a case where an employee with a latex allergy was fired for refusing to get a flu shot. The employer won that case because the employee refused to get a latex-free shot.

Can my Massachusetts employer Force Employees to wear a mask if they refuse a flu shot?

This is an approach we’ve seen more and more frequently, especially in the healthcare context. It too, however, comes with risk. In 2014, Baystate Medical Center hired Stephanie Clarke to work in its human resources department. Ms. Clarke is Christian and rejects injections of any kind. As a result, she told Baystate she was declining the flu vaccine. In response, Baystate provided Ms. Clarke with a mask and told her to wear it at all times. Several people complained that they were unable to understand Ms. Clarke when she wore the mask. As a result, she wore the mask when she wasn’t speaking, but pulled it down when she was.

Baystate determined this to be a violation of its policy and suspended Ms. Clarke without pay. Ms. Clarke complained about religious discrimination and asked that she be provided an accommodation that would allow her to perform her job duties. Baystate refused and told Ms. Clarke that she could not return to work unless she was vaccinated or agreed to wear the mask at all times. Ms. Clarke declined the vaccination and stated that she could not perform her job with the mask on at all times. Baystate treated that as Ms. Clarke’s resignation.

On June 2, 2016, the Equal Employment Opportunity Commission filed suit on Ms. Clarke’s behalf alleging retaliation, religious discrimination, and failure to accommodate her religious beliefs. That case is currently pending in federal court in Springfield.

Steffans Legal has extensive experience representing employees in employment discrimination and failure to accommodate claims. If you feel you are being discriminated against by your employer and would like to learn more contact us today.