Employers’ Flu Worries Go Beyond Germs, Attendance

This year’s influenza outbreak has sickened millions of people across the country, leaving employers struggling to cover for employees who are out sick and searching for ways to prevent others from coming down with the flu. But dealing with germ control and sick days is only the beginning. Legal issues also can come into play.

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This season’s flu virus is more widespread than usual, according to information from the U.S. Centers for Disease Control and Prevention (CDC), and it’s hitting children and young adults harder than usual. The CDC reported that as of the week ending January 6, 2018, the number of child fatalities attributed to this season’s flu outbreak hit 20. The CDC’s report for the week ending January 6 also showed “widespread” flu activity in every state but Hawaii, where flu activity was described as “regional.”

With this season’s flu hitting every state in the nation, employers may wonder if they can require employees to get a flu shot.

In some workplaces—especially healthcare facilities—employers try to make vaccinations mandatory. Those employers want to guard against sick employees endangering vulnerable patients, coworkers, and others. But no matter the purpose behind mandatory flu shot policies, some employees likely will object, sparking questions among employers on whether they can legally require employees to get a flu shot.

“Mandatory flu vaccines are lawful, but there are several issues that you must keep in mind,” Jennifer S. Frank, an editor of South Dakota Employment Law Letter and attorney with Lynn, Jackson, Shultz & Lebrun, P.C., in Rapid City, South Dakota, wrote in the January 2017 issue of the newsletter. She said employers need to make sure their policy allows for exceptions “to ensure that the policy doesn’t run afoul of any federal or state antidiscrimination laws.”

Often, employees cite religious objections to getting flu shots. Title VII of the Civil Rights Act of 1964 and some state laws prohibit discriminating against employees because of their religious beliefs. In such cases, employers have an obligation to search for an accommodation to employees’ sincerely held religious beliefs.

“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.”

Medical issues also may be a reason to excuse an employee from taking a flu shot. “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,” Frank wrote. “You should require the employee to provide a bona fide doctor’s note that excuses him from having the shot.”

Flu-related absences are another concern for employers. And just as employers need to worry about getting work done when employees call in sick, they also have to worry about employees who don’t call in sick when they’re contagious. The problem is aggravated when the employer doesn’t offer sick leave or employees have exhausted all available leave. Can an employer require a sick employee to stay home without pay?

“It depends,” according to Susan Hiser, an editor of Michigan Employment Law Letter   and attorney with The Murray Law Group, P.C., in Bingham Farms, Michigan, who addressed the problem in the November 2016 issue of the newsletter.

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, an employer can ask an employee to stay home without running afoul of the FLSA, Hiser wrote. But other laws such as the Family and Medical Leave Act (FMLA) also need to be considered.

Not all cases of the flu entitle an employee to time off under the FMLA, but a question-and-answer sheet from the U.S. Department of Labor (DOL) 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’s question-and-answer sheet also addresses employers’ responsibilities when officials decide to close schools because of illness. Employees who are sick or whose family members are sick may be entitled to FMLA leave in some circumstances, but employers aren’t required under federal law to provide leave to care for children who have been dismissed from school or child care.