In a recent post, I discussed the rights of healthcare organizations to mandate flu vaccinations and for employees to decline them. Other types of industries are also wrestling with this issue. Many employers have business needs, worker protection and public health concerns that may justify a flu vaccine policy.
Each flu season, nearly 111 million workdays are lost due to flu-related absences, costing employers an estimated $7 billion. In addition, flu is linked to $10.4 billion in direct costs for hospitalizations and outpatient visits for adults. (To learn more about flu impacts, refer to the CDC’s Make it Your Business to Fight the Flu toolkit.)
Drinker Biddle & Reath, a national business law firm, advises employers to consider the following when implementing a policy:
- Evaluate the business need. Be prepared to demonstrate “reasonable business interest” in the event of a challenge.
- Adopt a policy suitable for the circumstances. Vaccination may be mandatory for all, mandatory only for certain categories of employees or “strongly encouraged.”
- Review collective bargaining agreements. Under the National Labor Relations Act, a flu vaccination policy is subject to bargaining in unionized workplaces. An employer does not have to bargain if the union has “clearly and unmistakably” waived its right to bargain over the issue. A waiver is typically found in the “management rights” clause.
- The federal Equal Employment Opportunity Commission has found that employees may be exempt from mandatory vaccination under the Americans with Disabilities Act or a “sincerely held religious belief, practice or observance.” When an exemption is requested, work with the employee to identify a reasonable accommodation such as full exemption, temporary transfer during flu season or wearing a facemask.
- Do not terminate an employee who refuses a flu shot without first engaging in an interactive process. (Refer to Firing Employees Who Don’t Get Flu Shots: What Risks Do Hospitals Face?) You may require proof that employees have received a flu shot.
- Uniformly implement and apply any policy, including disciplinary measures. This may include progressive discipline, such as issuing a warning letter for an initial failure to show proof of a flu shot or not wearing a mask.
Finally, before implementing a policy, it’s advisable to confer with legal counsel and contact state or local public health officials for guidance. Any adverse action taken against an employee who cannot get the vaccine because of a disability or who raises a religious objection exposes an employer to a discrimination lawsuit.
See how UL's Occupational Health Manager helps employee health professionals automate their medical surveillance programs and simplify vaccination clinics.