GESUNDHEIT: EMPLOYER GUIDANCE ON FLU SHOT POLICIES

While autumn is generally a mirthful season of crisp weather, beautiful colors, and tasty s’mores, it also serves as the harbinger of one of the most dreaded yearly seasons – flu. With experts predicting that this flu season could be a severe one, employers are understandably worried about the safety of their employees and clientele.  Over the past several years, many employers have implemented mandatory flu vaccination programs for their employees.  If you have implemented, or are considering implementing, such a program, read on for tips you should consider.

First, consider your business need for a mandatory policy. As an obvious example, healthcare employers have been the vanguard of mandatory vaccination policies – indeed, the CDC has recommended flu vaccination for all healthcare workers since 1981.  Also, consider what type of policy may fit your particular needs.  Some employers (such as hospitals or schools) often enact a broad policy requiring all employees to get a vaccination.  Some only require certain segments of their workforce (such as those who regularly interact with patients or customers) to receive one, while still other employers simply “strongly encourage” vaccination.   Employers should be prepared to articulate their business rationale if the policy is ever challenged.

Second, review any applicable collective bargaining agreements. Under the NLRA, flu vaccination policy is a mandatory subject of bargaining.  A union may have waived its right to bargain over such a policy, but that waiver (generally contained in a “management rights” clause) must be “clear and unmistakable.”  Without such a waiver, unionized employers cannot unilaterally implement a mandatory vaccination program without giving notice to the union and an opportunity to bargain.

Third, be mindful of state and federal laws protecting against discrimination on the basis of religion and/or disability. For example, most flu vaccines are produced using eggs.  An employee could have an allergy to that (or another) component of the vaccine.  Additionally, courts have suggested that certain “sincerely held” beliefs or lifestyle choices that are not “religious” on their face, such as veganism, may nevertheless be protected under the “religion” clause.  Accordingly, the law requires employers to accommodate such employees unless an accommodation would impose an “undue hardship” on the employer’s business.

Finally, be consistent in enforcement of the policy and discipline for noncompliant employees. If an employee objects on medical or religious grounds, promptly engage in the interactive process and attempt to identify an accommodation.  Examples of accommodations could include an exemption from the policy, wearing a mask, or transfer to a position away from vulnerable patients/clients for the duration of flu season.  As with other accommodation decisions, do not brush off the request in broad strokes, but ensure that each objecting employee’s situation is evaluated individually.

For employers, navigating the competing interests of a vaccine policy – safety of the workforce and/or clients of the business vs. objection by skeptical employees or those unable to receive the vaccine for various reasons – can be a tricky proposition. As always, consult competent employment counsel if you are considering implementing such a policy, or if you believe an existing one might end up sneezing back in your face.

Mark focuses his practice in the area of labor and employment law. He regularly defends employers – both public and private sector – in employment-related lawsuits in the state courts of West Virginia and the federal District Court for the Southern District of West Virginia, as well as charges filed before the West Virginia Human Rights Commission, the West Virginia Public Employees Grievance Board, and the federal Equal Employment Opportunity Commission.
 
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