As the summer comes to an end, the dreaded flu season, which impacts employers across the country, looms ahead. According to the Centers for Disease Control and Prevention (“CDC”), the flu season can begin as early as October and last as late as May. The CDC reports that, on average, 5 to 20 percent of United States residents get the flu each year, and more than 200,000 are hospitalized.
In light of these statistics, many employers have begun to revisit their flu vaccination policies in an effort to determine how best to protect their employees, as well as their patients, customers, and clients. Indeed, many hospitals and health care facilities have implemented mandatory flu vaccination policies, and for safety and business reasons, other types of employers are determining whether to follow suit.
But employers must first be aware of the legal implications involved with such programs:
- Exemptions to Mandatory Policies – Employers should be prepared to work with employees who object to receiving a mandatory flu shot on the basis of medical or religious reasons. For example, an employer could be held liable if it forces an employee, who claims she is allergic to the vaccination, to take it or face termination and that employee later becomes ill. Additionally, anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (“ADA”), may prohibit the enforcement of mandatory vaccination policies against employees who claim their disability or sincerely held religious belief or practice prohibits them from receiving the flu shot. Employers should set up a clear and consistent process for assessing whether an exemption is warranted, require employees to sign a declination form to document the employee’s objection, and request a doctor’s note where an employee seeks a medical exemption. In keeping with ADA obligations, employers should also engage in the interactive process with any employee who cites an alleged disability to determine whether a reasonable accommodation exists, such as complete exemption, wearing a mask, temporary reassignment, or use of a color badge to identify if an employee has not been immunized. An employer, however, should never treat an employee who has received an exemption in a retaliatory or punitive manner.
- Who Should Be Vaccinated – Many employers only require employees who have regular access to patients or individuals with compromised immune systems to receive a flu shot. If a policy is challenged, an employer must be prepared to present its reasonable business interest. Careful consideration of the scope of a mandatory policy prior to implementation can avoid legal issues down the road.
- Consequences for Failure to Vaccinate – An employer must determine whether corrective action or termination will be the penalty for employees who refuse to receive a vaccination (but do not fit within an exemption) and whether to institute infection control measures, such as wearing a mask or temporarily reassigning an employee, during the flu season. It is critical, however, that the employer uniformly implement the policy and ensure that the measures are being used to increase public safety and are not punitive.
- Employment Contract or CBA – If an employee has an employment contract, an employer may be barred from forcing the employee to take a flu shot or risk termination. Similarly, a collective bargaining agreement between an employer and a union may also prevent an employer from unilaterally instituting a policy that changes the terms and conditions of employment without approval from the union and its members.
If employers intend to develop mandatory flu vaccination policies, they should consider all legal implications before implementing such policies. The key, however, to the success of any policy is consistent implementation, especially to protect against any discrimination claims or civil rights violations.
There are also several steps an employer can take to reduce the spread of the flu other than instituting mandatory vaccination policies. Some employers ease attendance policies increasing sick leave, encourage ill workers to stay home, or allow sick workers to work from home. Many employers also offer free voluntary workplace vaccinations, which studies show increase the number of employees who are vaccinated. The policy, whether mandatory or voluntary, should be set forth clearly and also can be included in the employee handbook, which each employee should be required to sign acknowledging that they have read the policy along with a disclaimer that the policy does not imply any contractual agreement.
In short, not every employer will approach the flu season in the same way - employers should consider their needs and plan accordingly and should consult their state departments of health to seek further guidance on such policies. BakerHostetler is also here to assist with developing such programs and policies.