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Posted: February 06, 2013

‘Tis the season: Employers and the flu

It's bad and getting worse

Ruth Mackey

The current flu season is one of the worst in years, and the Centers for Disease Control and Prevention (CDC) warns that the flu epidemic currently shows no sign of abating. 

So far this season, 42 states reported widespread levels of the illness, and Boston declared a public health emergency on January 10 because of the expanding flu outbreak.  Massachusetts reported 18 flu-related deaths by mid-January.

Needless to say, employers continue to be hit hard by absences related to the flu.  They are also being hit with the worst whooping cough outbreak in 60 years and a particularly virulent strain of the norovirus (cruise ship illness) this season.  Consequently, flu-related legal challenges have come to the fore for employers, including the controversial issue of mandating flu vaccinations, as well as some of the measures employers take to prevent the plague-like spread of the virus at work.

Employers also face practical challenges as they respond to sick employees, mandate flu vaccinations, and seek to maintain a safe workplace.  How then should employers respond to the flu outbreak?

Practical considerations

• Continually remind employees to wash hands, for at least 20 seconds, and provide frequent hand-washing opportunities;  medical professionals also advise keeping hand sanitizer nearby, and to avoid touching one’s eyes , nose, and mouth

• Educate employees about the severity of this year’s flu strain and the few risks associated with vaccinations; provide CDC guidance as explanation. This year’s flu vaccine is reportedly effective against the current flu strain

• Encourage vaccinations and if necessary, mandate them; employees who object to vaccinations should be considered on an individual basis

• Encourage sick employees to stay home if they are feeling poorly! Employers do not need dutiful, but sick employees infecting an entire department

Legal Considerations

• Conduct a Risk Assessment to justify vaccination demands, especially if you are in healthcare, air travel, hospitality, or food service

• Where necessary, conduct an individualized analysis of employee refusals to take vaccinations due to religious or ADA (Americans with Disabilities Act) concerns

Mandatory Flu Vaccinations: A Controversial Issue

Media reports indicate a backlash against these policies, reporting that some employees are vehemently objecting to vaccinations, and in some instances anti-vaccine support groups have formed.  Nonetheless, the CDC and the public health system remain squarely in favor of the flu vaccination.  Health care employers, in particular, make flu shots mandatory and are successful in requiring employees to take the flu vaccination as a term of employment.

However, in adhering to their collective bargaining agreement, unionized employees may have a duty to bargain about flu prevention policies.  In a recent high-profile dispute in Seattle, involving Virginia Mason Medical Center and the Washington State Nurses Association, the National Labor Relations Board ruled that the adoption of a flu shot policy was not unlawful because the nurses waived their right to bargain over the matter by agreeing to the management rights clause of the parties’ collective bargaining agreement.

Federal Agencies, Employers, and the Flu

In determining whether an employer may mandate flu vaccinations, the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and other federal agencies heavily rely on CDC positions. 

OSHA notes that a Risk Assessment should evaluate the nature of the workplace and employee duties. It is easier to justify a mandatory vaccination in certain industries such as healthcare and food service.  However, an employer must still consider the reasons for an employee’s objection and whether any accommodation is feasible for health or religious objections.

The EEOC holds that employers must engage in an individual, interactive process with respect to any employee who objects to a flu shot for religious or health reasons.

Use Available Resources

Employers should utilize the full array of private and public resources that offer advice on the flu and how to deal with it, from both a practical and legal perspective.  Some of these resources include:

www.Flu.gov :  Health, safety and employment law guidance
•: CDC guidance for businesses
• CDC listing of other flu websites
• CDC seasonal influenza site
•  OSHA information on workplace safety and the flu
•  EEOC information on pandemic preparedness in the workplace and the ADA
• CDC list of state laws which may affect an employer mandating flu vaccinations
 

Ruth Mackey is an Associate in the Denver office of Fisher & Phillips LLP.  She practices exclusively in the area of labor and employment law on behalf of employers. Contact her at 303-218-3650 or at  rmackey@laborlawyers.co

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