With flu season upon us, employers may be tempted to require that employees receive a flu shot. After all, the Centers for Disease Control and Prevention (CDC) says that the flu costs employers about $10 billion each year in healthcare costs. And receiving the shot can drastically reduce an individual’s risk of contracting the flu, the CDC says.
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While recent case law and federal enforcement agencies seem to agree that employers can sometimes mandate flu shots, the U.S. Equal Employment Opportunity Commission (EEOC) has in recent months taken aim at employers’ implementation of these policies.
Often, organizations run into trouble when they fail to grant exemptions for protected characteristics that entitle individuals to accommodation—namely religion and disability. (Some employees also may want to opt out for philosophical reasons but that doesn’t seem to be something that employers have to accommodate.)
And employers might find themselves with even more employee push-back than usual this year because of the absence of the nasal mist option, according to Jo Ellen Whitney, a shareholder with Davis Brown and editor of BLR’s Iowa Employment Law Letter.
Proper Implementation
A flu-shot mandate is, of course, easier to justify and enforce in a setting in which flu transmission could have serious consequences, such as in health care, Whitney told HR.BLR®. Child care and food preparation settings also might be in the clear.
However, employers must adopt such policies with care. EEOC has filed several lawsuits recently taking aim at the way in which employers have carried out these mandates.
In April, EEOC sued a North Carolina hospital when it refused to accommodate workers who missed the employer’s deadline for exemption requests. “An arbitrary deadline does not protect an employer from its obligation to provide a religious accommodation,” said Lynette A. Barnes, an EEOC regional attorney, in a statement announcing the suit. “An employer must consider, at the time it receives a request for a religious accommodation, whether the request can be granted without undue burden.” That case, EEOC v. Mission Hospital, No. 1:16-cv-00118 (W.D.N.C. April 28, 2016), is still pending.
Then in June, EEOC sued a Massachusetts hospital when it fired an employee who had received a religious exemption but failed to wear a face mask, as the employer’s policy required. The employee, who worked in talent acquisition and had no patient contact, pulled her mask down several times when others complained that they could not understand or hear her, particularly on the phone.
When she was fired for not wearing the mask at all times, EEOC alleged that the employer failed to provide her with an effective accommodation that didn’t interfere with her ability to perform her job. It also alleged that because she had no contact with patients, it would not have been an undue hardship for the employer to permit her to remove her mask while speaking (EEOC v. Baystate Medical Center, Inc., No. 3:16-cv-30086 (D. Mass. June 2, 2016)). That case is also still pending.
And as recently as September 26, the commission sued a Pennsylvania hospital for failing to approve religious exemption requests. The hospital granted 14 medical exemptions to its vaccination policy but denied six religious exemption requests and ultimately fired those workers when they failed to get a flu shot.
“In religious accommodation cases, the standard is not whether company officials agree with the employee’s religious beliefs or whether those beliefs are the recognized position or official doctrine of any particular religious organization or group,” said Debra M. Lawrence, a regional EEOC attorney. “Absent proof establishing an undue hardship, federal law requires an employer to provide reasonable accommodations for sincerely held employee religious beliefs, even if some may consider those beliefs idiosyncratic.” (EEOC v. Saint Vincent Health Center, No. 1:16-cv-00234-BR (W.D. Pa.))
If an employer chooses to adopt a mandatory vaccination policy, it should carefully consider what it will require of employees who receive an exemption, and that should vary based on industry, according to Whitney. “In the hospital setting, courts have determined that the employee can be segregated or required to wear a mask during flu season. This was not considered to be discriminatory,” she said. Similarly, a mask or temporary reassignment may be appropriate for those in child care or elder care.
“However, in less clear-cut situations, I would be hesitant to require a mask or take similar action,” Whitney said. A mask tends not to be practical. The same goes for leave, as flu season lasts for several months each year. Telecommuting could be an option for some but, again, its practicality may be limited.
Other factors, like state laws or collective bargaining agreements, also may be implicated. “If you have a union contract this is likely a bargaining issue and you need to assess what the contract might say,” Whitney cautioned.
Communication also is key. Employers also should explain their reasoning to employees and get ahead of any public relations issues, she said.
Voluntary Options
For employers who aren’t in the healthcare industry—or who don’t wish to mandate flu shots—there are other ways to limit the flu’s effect in the workplace.
Policies. Whitney recommends a communicable disease policy that follows CDC guidelines. This could include a requirement that sick employees stay home until they have gone 24 hours without a fever, vomiting, or diarrhea. If someone displays symptoms at work, send them home, she said. “Partner with a provider to send cases to them to assess if you need to.”
Onsite clinic. The CDC says an annual flu vaccine is the best way to prevent the flu and notes that for employers, an onsite flu vaccination clinic can be a cost-effective way to deal with flu season.
Many employers offer free or low-cost vaccinations to employees in the workplace. The CDC says employers also could consider extending the offer to employees’ families.
Community vaccination. If you don’t provide an on-site clinic (or don’t open the clinic to employees’ families) the CDC recommends that employers promote flu vaccination in the community.
Make sure your employees know where they and their families can get a flu shot, the CDC says, and consider partnering with a local pharmacy.
Moreover, employers may want to allow workers to obtain a shot during work hours, without clocking out, Whitney said. For example, employers could offer an hour off as long as the employee shows proof of vaccination.
Education. Employers also may want to educate employees about the consequences of flu and the benefits of the flu vaccine through in-house communications tools like newsletters and e-mails, the CDC says.
Whitney also suggested “wash your hands” and “cover your cough” posters in the workplace. Materials are available from the CDC and other public health organizations.
Sick time. The Occupational Safety and Health Administration (OSHA) encourages employers to implement flexible leave policies that encourage workers to stay home, without penalty, if they are sick. Flexible telecommuting policies also could help reduce transmission.
Whitney agreed: “For flu season, indicate that staying home due to a demonstrable communicable illness such as the flu will not result in attendance occurrence.”
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Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for