Oct 4th 2013
By Richard D. Alaniz
Seasonal flu is not only unpleasant for employers and employees, it's expensive. Each flu season, nearly 111 million workdays are lost because of the flu, the US Department of Health & Human Services has found. That represents approximately $7 billion per year in sick days and lost productivity.
It's no wonder that some companies are considering requiring that employees get a flu vaccine every flu season. However, before implementing such a requirement, companies need to consider many different factors. While a flu vaccine offers the greatest protection against the virus, mandating it carries its own logistical costs and can lead to unhappy employees.
During the last flu season, a hospital in northern Indiana fired eight workers who refused to get vaccines against the seasonal disease. According to several media reports, IU Health Goshen Hospital had instituted a policy requiring employees to get flu shots. Several employees balked at getting the shots and tried to seek exemptions. The hospital decided not to grant exemptions and terminated the workers when they refused to change their minds.
For the hospital, maintaining a healthy work environment was critical. "IU Health's top priority is the health and well-being of our patients," the hospital announced in a press release. "As a trusted leader in caring for people and advancing health, we are responsible for delivering the best care in the safest environment. Influenza can be fatal for patients with weakened immune systems, children, and the elderly. Therefore, participation in the annual Influenza Patient Safety Program is a condition of employment with IU Health for the safety and health of the patients that we serve."
If your company is considering a mandatory approach, here's what you need to know in order to achieve the organization's goals of a healthier work environment while minimizing legal risk and worker discontent.
The Effects of the Flu
While the flu is generally an unpleasant experience for most healthy adults, it can be extremely serious and even fatal. The flu is a contagious respiratory illness caused by viruses, according to the Centers for Disease Control and Prevention. Symptoms can range from mild to severe. "The best way to prevent the flu is by getting vaccinated each year," the CDC says.
While most people recover from their symptoms in less than two weeks, some may have complications that include pneumonia, bronchitis, and sinus and ear infections. Those with chronic health problems, such as asthma, may see them worsen after a bout with the flu.
Part of the problem with the flu is its unpredictability. The flu can strike down anyone, even those who are healthy. It's impossible to know from one season to the next how serious the flu may be, or even how effective the vaccines against it will be.
Trends in Flu Vaccine Requirements
An increasing number of employers, particularly in the health care field, are requiring employees to receive the vaccine as a condition of employment. A growing number of states are also requiring the vaccine for health care workers.
Johns Hopkins Medicine group, which requires most employees to get the vaccine, has reported that more than a dozen states require health care workers get the flu shot in some situations.
However, a backlash to these requirements is also growing. A Wisconsin legislator has proposed a law that would ban mandatory flu vaccines in that state. According to an article by the Associated Press, Representative Jeremy Thiesfeldt has written a bill that would prohibit employers from demoting, suspending, discharging, or discriminating against employees who refuse to get the shot.
Some employees and unions object strenuously to a vaccine mandate and have responded with legal action. Although it has since withdrawn its lawsuit, last December, the SEIU Healthcare Employees Union District 1199 attempted to stop the Rhode Island Department of Health from requiring members of its union to either get a flu vaccine or wear a mask during contact with patients.
Recently, the US District Court for the Southern District of Ohio allowed an employee who had been fired for refusing a vaccine to continue with her lawsuit against her former employer. Sakile S. Chenzira sued Cincinnati Children's Hospital Medical Center, claiming it discriminated against her religion by terminating her when she refused to get the vaccine. Chenzira is a vegan, and since the flu vaccine contains chicken eggs, she claimed that getting the shot would violate her beliefs. The hospital unsuccessfully tried to get the lawsuit thrown out, arguing that veganism is not a religion.
According to the ruling by US Senior District Judge S. Arthur Spiegel, "The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views."
The Right Approach for Your Company
Considering how expensive seasonal flu can be, it makes sense for companies to try to keep their workforces as healthy as possible. Generally speaking, employers have the right to require a flu vaccine as a condition of employment. However, there are exceptions.
In some industries, a mandate requiring flu vaccines may make the most sense. This is particularly true when employees work with sick people or have close contact with others. However, other employers may want to consider whether they may be able to achieve less absenteeism and a healthier workforce by encouraging, rather than requiring, employees to get the vaccination. It's worth noting that the flu vaccine will not completely eliminate the flu, even if every employee gets a shot. According to the CDC, the vaccine for the 2012-2013 flu season was about 60 percent effective.
If a company decides a mandatory flu vaccination policy represents the best approach for workers, customers, and others, there are several things employers should keep in mind:
Create a clear, legally sound policy. When developing a policy, work closely with counsel and the HR department to write one that will stand up to any legal challenges. Be sure to check your state's laws as well.
Once the policy has been created, the company needs to spread the word so that new and current workers understand what the expectations are.
Prepare for the paperwork. When vaccines are required, managers, supervisors, HR, or someone else will need to ensure that employees get their shot in a timely manner. It's important to think through the record-keeping process before diving in.
Recognize room for exceptions. Some employees simply won't want to get flu vaccines, for a variety of reasons. Some may be based on personal choice, others may feel that it goes against their religion, and others may have legitimate medical reasons for avoiding the flu vaccines. For example, the CDC recommends that people with a severe allergy to chicken eggs or people with a history of Guillain-Barré syndrome talk to their doctor before getting a shot.
When requiring a vaccine, employers should develop a system that allows employees to request an exemption. While employers may feel that some of these requests are more legitimate than others, they should take each one seriously in order to head off potential legal issues.
When reviewing exceptions, companies should turn to medical experts, since supervisors and managers will not have the knowledge or experience to determine when an exception is warranted. Using an impartial, outside expert to rule on exemptions can also help to build trust in the program. This includes input from the employee's personal physician.
Understand that workers may operate under different sets of rules. While employers generally have the right to institute a mandatory flu shot requirement for at-will employees, the situation may be different for other groups. This is particularly true for union workers, unless the matter has specifically been addressed as part of the collective bargaining agreement. If your workers are members of a union, you will have to work with the union in order to implement a flu vaccine policy that is legally enforceable.
Work with employees. When requiring, or even just encouraging, vaccination, employers should make it as easy as possible to improve participation. The CDC recommends hosting cheap or free vaccine clinics at work sites. Setting up clinics is often easiest for employers that have on-site health clinics, but those without such facilities can contract with pharmacies and other providers that offer seasonal flu vaccines.
Many employees may also have concerns about the safety and efficacy of the flu vaccine. If your company decides to mandate the vaccine, make extra efforts to provide information to answer employees' questions and address their concerns. Be sure to stress the benefits to employees about how the vaccine will help everyone avoid the flu. Consider offering the nasal spray flu vaccine as well as the injection method, since some employees may likely have a fear of needles.
Many companies are investing in staying healthy through the flu season. By carefully considering flu vaccines in their specific industries and workforces, these companies can keep employees healthy and on the job and avoid legal problems at the same time.
Read additional labor and employment law articles by Richard Alaniz.
About the author:
Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the US Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Rick at (281) 833-2200 or [email protected].