Non-health care employers should avoid mandatory flu shot requirement, attorney says

Flu season is here with a vengeance. The U.S. Center for Disease Control and Prevention (CDC) reports that the number of people seeing their health care providers for flu like symptoms has increased from 2.8% to 5.6% in the past few weeks. In comparison, last year the number peaked at 2.2 percent. With most of the country experiencing what the CDC calls "high levels of influenza-like-illness," employers, in particular health care providers, are implementing measures to prevent or slow the spread of flu. That's a good thing to do according to Patricia Nemeth of Detroit-based employment law firm Nemeth Burwell PC.

"Measures in the workplace such as urging regular hand washing and encouraging employees to take time off when sick to limit the spread of illness are smart moves. The legal challenges can arise when employers mandate that employees be immunized with the flu vaccine," explained Nemeth.

Whether or not employers can mandate employee immunization may depend on where the employee works. Employers should consider whether there is a legitimate reason for mandating the immunization and to what degree that reason directly involves safety issues. The stronger that argument is, the more likely the employer will be within its rights to mandate flu shots, according to Nemeth.

"Employers in the health care industry have a legitimate interest in protecting their patients and other employees and in slowing the spread of disease in general. Employers unable to establish such a legitimate interest may have a more difficult time justifying this mandate if challenged," noted Nemeth.

Nemeth cited a recent case where the United States District Court for the Southern District of Ohio considered the case of a healthcare worker who refused to get a flu shot. She argued that a vaccination would violate her vegan beliefs because chicken eggs are used in the preparation of the flu vaccine. Although the case survived a very early motion to dismiss by the hospital (which argued without adequate testimony that veganism is not a religion), the court indicated that the hospital may still prevail if it could prove it had legitimate safety concerns for its patients. Because of the early stages of the litigation, no such evidence had yet been presented.

The Equal Employment Opportunity Commission (EEOC) states that employers "should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it." When confronted with the health and safety issues such as infection control, however, many healthcare employers still mandate seasonal flu vaccinations. Others have allowed employees to opt-out of a flu vaccine as long as they adhere to other infection control standards such as wearing a surgical or isolation mask whenever interacting with patients during the flu season.

"Employers in non-healthcare industries should be significantly more skeptical of vaccination requirements," said Nemeth. "Not only could this be costly and difficult to implement, it may violate state and federal anti-discrimination laws or create unforeseen liability should the employee suffer an allergic reaction or be otherwise harmed by the vaccination."

In the event of a flu pandemic as determined by the CDC or other state or local public health authorities, the EEOC's "pandemic preparedness" assistance document provides initial guidance for employers. For the more common seasonal flu assistance, the CDC and the U.S. Department of Health and Human Services provide information and materials for businesses looking to help protect their workforce. This information is available at: http://www.cdc.gov/flu and http://www.flu.gov/.

Nemeth Burwell (www.nemethburwell.com) specializes in employment litigation, traditional labor law and management consultation for private and public sector employers.

Published: Thu, Jan 24, 2013

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