Flu season has arrived in New Jersey, and it’s expected to be a particularly brutal one. While there are steps employers can take to keep their workforce healthy, requiring the flu vaccine can lead to liability if businesses fail to take disability and anti-discrimination laws into account.

Flu shots range in effectiveness, depending largely on how well scientists can match the flu strains used to make the vaccinations with the strains that dominate the year’s flu season. Over the past decade, the estimated effectiveness has varied from 10 percent to 60 percent. Nonetheless, they are proven effective in preventing wide-spread outbreaks and protecting vulnerable populations via so-called “herd” immunity.

Mandatory Flu Shots

Eighteen states have enacted flu vaccination requirements for hospital healthcare workers, and 16 states establish requirements for hospital patients, according to the Centers for Disease Control and Prevention (CDC). New Jersey is not one of them. In 2012 and 2014, Gov. Chris Christie vetoed legislation that would have required healthcare facilities to offer flu shots to workers and for employees to get vaccinated or sign a statement saying that they were declining it.

Nonetheless, many healthcare facilities across the county have enacted their own requirements. This fall, Essentia a Minnesota-based health care provider that operates long-term facilities, hospitals and clinics in four states, fired more than 60 workers that failed to comply with its mandatory flu vaccine policy. Under the mandatory vaccination policy, all employees (as well as volunteers, medical students and vendors who work in their facilities) must be vaccinated as “a condition of employment.” While the policy contained exceptions that allowed workers to refuse vaccination for medical or religious reasons, the company is still facing an employment lawsuit and subsequent public relations fallout.

This is not the only lawsuit to come out of the recent flu outbreak. Across the country, private employers are also facing legal pushback after terminating employees who failed to comply with mandatory vaccination policies. Although most employees work “at-will,” forcing workers to get flu shots can run afoul of federal employment laws such as the Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA). For instance, if employees’ religious beliefs prevent them from taking vaccines and other medications, they cannot be terminated for refusing the flu shot. 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.

For instance, workers must demonstrate that they have a sincerely held religious belief. Last year, the Appellate Division of the New Jersey Superior Court held that a New Jersey hospital was not liable for religious discrimination under the state’s Law Against Discrimination (LAD) because the plaintiff failed to allege that she was a member of a protected class.

Other Flu Prevention Options to Maintain a Healthy Workplace

The flu can significantly increase absenteeism and derail employee productivity. However, due to the potential liability, employers are increasingly looking to other steps to combat the flu and promote a healthy work environment. Below are several steps to consider:

Adopt flexible work arrangements. Many employees will come to work even when they are feeling “under the weather.” However, this is one of the most common ways to spread the virus. To make sure sick employees do not come into contact with healthy ones, employers may want to consider allowing employees to work from home (if they do not already do so). This will help ensure that employees are fully recovered before returning to the office. Employees should also be sent home at the first sign of illness rather than allowing them to try and “tough it out.”

Monitor flu-related absences. Employers should keep track of employee absences that are related to influenza. Although companies should be careful not delve into protected health information, employers may inquire whether an absence was related to flu-like symptoms. They may also require employees to provide clearance from their physician before returning to work.

Promote a healthy office environment. In addition to vaccination, there are other steps employers can take to help deter the spread of the virus. Providing information about the importance of hand washing, cleaning commonly shared items like office equipment, and covering coughs and sneezes can all be helpful in keeping the flu in check this season.

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