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Flu season’s legal issues nothing for employers to sneeze at

It’s bad enough that flu can make people miserable and hamper an employer’s operations, and it may be even worse when employees decide to power through and come to work sick, thereby spreading the misery. But besides dealing with the illness, employers have legal and policy issues to consider, including whether they can require employees to take flu shots and how to handle absences. 

Various health authorities recommend vaccinations, and some employers require them for at least some employees. But many employees object on religious or other grounds.

Mandatory vaccination policies are common among health care employers, since flu-stricken employees can endanger vulnerable patients and employees can be infected by the contagious patients they care for. But employers often wonder how far they can go with a vaccination policy.

OK to mandate flu shots?
“Mandatory flu vaccines are lawful, but there are several issues that you must keep in mind,” Jennifer Suich Frank, an attorney with Lynn, Jackson, Shultz & Lebrun, P.C. in Rapid City, South Dakota, wrote in a January issue of South Dakota Employment Law Letter. Employers need to make sure their policies allow for exceptions “to ensure that the policy doesn’t run afoul of any federal or state antidiscrimination laws.”

Many employees objecting to taking flu shots cite their religious beliefs. Title VII of the Civil Rights Act of 1964 and some state laws prohibit discriminating against employees because of their religious beliefs, meaning the employer has an obligation to accommodate an employee’s sincerely held religious belief.

“That may very well mean excusing an employee with religious objections from receiving a mandatory flu vaccine,” Frank wrote. “You could employ other safety protocols in these circumstances, such as requiring the employee to wear personal protective equipment, gloves, or a mask.”

In addition to religious beliefs, employees may need to be excused from taking a flu shot because of certain medical issues, Frank says. “For example, under the Americans with Disabilities Act (ADA), you have a duty to accommodate an employee with a disability if he can show that having a flu shot would worsen his condition or pose a danger to his health. You should require the employee to provide a bona fide doctor’s note that excuses him from having the shot.”

Know what to do
Natalie B. Virden, an attorney with Aiken Schenk Hawkins & Ricciardi, P.C. in Phoenix, Arizona, reports in the January issue of Arizona Employment Law Letter that the Equal Employment Opportunity Commission (EEOC) filed at least three lawsuits during 2016 alleging that an employer violated Title VII with a mandatory vaccination policy. Because of the legal risk in requiring annual flu vaccinations, Virden has suggestions for employers:

  • Understand Title VII. “The threshold for whether a belief is religious in nature is low,” Virden wrote. “That being said, it’s worth noting that courts have held that purely personal, political, ideological, or secular beliefs probably won’t satisfy enough criteria to be considered religious in nature.” But if an employer documents sincerely held religious beliefs, the employer needs to offer a reasonable accommodation as long as the accommodation won’t impose an undue hardship on the business.
  • Offer accommodations. Employers have options when offering accommodations to employees. For example, some employers provide employees who refuse vaccinations with masks. Another potential accommodation is transferring an employee to a position requiring little interaction with clients or patients.
  • Revise policies. It may make sense for some employers to reduce the scope of a vaccination policy to cover only employees who have direct contact with patients or clients.

Attendance concerns
Flu brings more complications than just employee objections to vaccinations. When employees are absent, production suffers. Likewise, when employees show up but are too sick to work effectively, production suffers and healthy employees are put at risk.

But what if an employer doesn’t offer sick leave or a flu-stricken employee has exhausted all available leave? Can the employer require a sick employee to stay home without pay? Susan Hartmus Hiser, an attorney with The Murray Law Group, P.C. in Bingham Farms, Michigan, addressed that question in the November issue of Michigan Employment Law Letter, by answering “It depends.”

The federal Fair Labor Standards Act (FLSA) says a nonexempt employee must be paid only if the employer suffers or permits the employee to work. Therefore, the employer can ask the employee to stay home without running afoul of the FLSA, Hiser says. But other laws need to be considered, such as the Family and Medical Leave Act (FMLA). Not all cases of flu entitle an employee to time off, but a question-and-answer sheet from the U.S. Department of Labor says that covered employees of covered employers who are incapacitated by a serious health condition, “as may be the case with the flu where complications arise” may be allowed to take FMLA leave.

The DOL question-and-answer sheet also addresses employer responsibilities when officials decide to close schools because of illness. Although employees who are sick or whose family members are sick may be entitled to FMLA leave in some circumstances, employers are not required under the federal law to provide leave to care for children who have been dismissed from school or child care.

“However, given the potential for significant illness under some pandemic influenza scenarios, employers should review their leave policies to consider providing increased flexibility to their employees and their families,” the DOL document says.

The U.S. Centers for Disease Control and Prevention (CDC) says the U.S. is currently not experiencing pandemic influenza, which it defines as a global outbreak of a new flu virus that is able to infect people easily and spread in a sustained way.

Although not experiencing pandemic flu, many areas of the country are experiencing high levels of influenza-like illness (ILI). CDC figures for the week ending February 4 show that 23 states were experiencing high ILI levels and 10 states were experiencing moderate activity.