Now that cold weather is here to stay, flu season is officially upon us. The Centers for Disease Control and Prevention (“CDC”) estimates that there are between 9.2 million and 35.6 million flu-related illnesses each year in the United States.  If the past few years are any indication of what to expect, this flu season is likely to be a rough one.

Schools, nursing homes, workplaces, and other places where large groups congregate daily are particularly vulnerable to flu outbreaks.  For employers, flu season can result in high rates of absenteeism and decreased productivity.  Therefore, it’s natural for employers to want to use every means available to help maintain a healthy workplace.  While many employees get a yearly flu shot in hopes of fending off the flu, it is important to understand when flu shot policies can lead to employer liability.

Do State Laws Mandate Flu Shots?

State laws on flu vaccination vary. Eighteen (18) states have enacted flu vaccination requirements for hospital healthcare workers, and sixteen (16) states establish requirements for hospital patients.  At present, New Jersey only mandates flu shots for small children. New Jersey does not require workers, even those in the healthcare industry, to get vaccinated against influenza.

Can Employers Require Flu Shots?

In the absence of regulations, employers are free to establish their own flu vaccination policies.  However, to avoid facing legal liability, mandatory flu vaccination policies must provide for exceptions, as well as outline the steps that workers must take to rely on them.

An employee may be entitled to an exemption from a mandatory vaccination requirement based on a medical condition that prevents him from taking the influenza vaccine.  Under the Americans With Disabilities Act (ADA), employers must provide employees a reasonable accommodation barring undue hardship, i.e. significant difficulty or expense.

Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him or her from receiving the influenza vaccine, the employer must provide a reasonable accommodation, unless such accommodation would pose more than a de minimis hardship. 

Can Employers Fire Workers Who Violate Vaccination Policies?

Terminating an employee for failing to get vaccinated can lead to liability, particularly if the employee cites a medical reason or religious objection to not receiving the flu shot. In recent years, employers with mandatory flu shot policies have faced wrongful termination suits by workers as well as agencies like the Equal Employment Opportunity Commission (EEOC). 

Earlier this year, Saint Thomas Health (STH) - which operates Saint Thomas Rutherford Hospital in Murfreesboro, Tennessee – agreed to pay $75,000 to settle a religious discrimination lawsuit filed by the EEOC. According to the suit, in 2013 and 2014, STH allowed the employee at the center of the suit to opt out of its mandatory flu shot policy and wear a protective mask instead. The accommodation was based on his religious beliefs. However, when the employee requested the accommodation in 2015, STH refused to let him work at the hospital if he didn’t get the shot, and he was ultimately terminated.

In addition to paying $75,000 in compensatory damages to the employee, STH must modify its accommodation policy to allow an employee to appeal the termination of an accommodation for a sincerely held religious belief. In a press statement announcing the settlement, the EEOC stated that “[a]n employer should not force an employee to choose between employment and his religious belief unless doing so would cause an undue hardship to the employer."

What Can Employers Do to Create a Healthy Workplace AND Avoid Liability?

Employers can strongly recommend that employees get a flu shot. They can also help facilitate the process by holding a free flu shot clinic or offering “prizes” for workers who elect to get vaccinated. 

Employers may also encourage employees to telework (i.e., work from home) as an infection-control strategy.  In addition, employees with disabilities that result in a high risk of complications from influenza may request working remotely as a reasonable accommodation to reduce their chances of infection during a flu outbreak.

Employers can and should encourage employees to adopt common-sense infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal. Trying to “tough it out” puts healthy workers at risk and increases the risks of a wide-spread outbreak in the workplace.  Therefore, employees should be sent home at the first sign of illness.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Gregg Hilzer, at the 201-806-3364.