by Mary Cooper
Summer is over, and autumn has arrived. Football and fall leaves will soon usher in another dreaded flu season. For many employers, the arrival of flu season means more sick days and less production. The CDC reports that, on average, 5% to 20% of the U.S. population gets the flu virus each year with the peak from late November through early March. Those infected with the influenza virus can be ill for 5-7 days, which can mean major staffing problems for employers unlucky enough to have a facility-wide mini-epidemic on their hands. To prevent the flu virus from taking their workforces hostage, many employers have begun implementing mandatory vaccination requirements as a condition of employment. Generally in Arkansas, an at-will employment state, employers can require employees to get flu shots and terminate those employees that refuse vaccination. However, there are several exceptions and other issues employers should consider before implementing a policy requiring employees to get flu vaccinations.
- Employment contracts. A mandatory flu vaccination policy may violate existing employment contracts. Employers are strongly encouraged to review all contracts related to employment before implementing such a policy.
- Collective bargaining agreements. Similarly, requiring flu vaccines may create legal headaches for employers with union workers. Employers should avoid implementing a required vaccine policy unless the collective bargaining agreement specifically addresses flu vaccine requirements. Without careful consideration, a mandatory flu vaccination policy will likely violate the terms of a collective bargaining agreement and not hold up as legally enforceable.
- Discrimination. Employers considering a mandatory flu vaccination policy must also take great care not to discriminate against employees who do not want to get flu shots. Any policy must make enforcement exceptions for those employees whose religious beliefs conflict with vaccination practices.
- A pending Ohio case exemplifies a potential pitfall in this regard. Sakile Chenzira worked for Cincinnati Children’s Hospital Medical Center and was fired after she refused to comply with the hospital’s mandatory flu vaccination policy because of her vegan lifestyle. Chenzira told her employer that her vegan beliefs prevented her from consuming animal products like eggs, which are used to make the flu vaccine. Chenzira sued the hospital, alleging discrimination on the basis of her religion – yes, her religion. Chenzira’s lawsuit has not been decided, but the federal court where the case is pending recently denied a motion seeking dismissal filed on behalf of the hospital. This case underscores the risks associated with a mandatory vaccination policy. Employers also need to keep in mind that some employees simply cannot receive the vaccine due to health or medical reasons. It is important that employers consider these and other exemptions (and related matters such as how employees will submit documentation supporting an exemption and what guidelines employers will use for approval and enforcement).
- State specific laws. Several states have enacted mandatory vaccination laws for certain health care employees as a result of increased public health concerns in the industry. Employers should always check specific state laws before implementing a mandatory vaccination policy. In Arkansas, for example, Ark. Code Ann. § 20-10-1304 requires that all nursing home employees (including part-time employees) get annual immunizations against influenza and pneumonia. Arkansas nursing home employees are exempt from the mandate only if the FDA-approved label suggests the individual should not receive the vaccine (e.g. a known egg allergy). The law does not, however, provide a religious exemption for nursing home employees that object on the grounds that vaccinations conflict with their religious tenets and practices. Other states like New York require that certain groups of health care workers and volunteers get the vaccine or wear a protective mask during peak flu season.
The flu season can be a costly time for employers, so it is easy to understand why many consider using mandatory flu vaccination policies as a combative measure while battling the virus’s negative effects. However, employers should be aware of these and other potential risks when adopting such a policy. For most employers, a policy that encourages, but does not mandate, flu vaccinations is the best practice. Of course, each company and industry is unique and an individualized assessment is ideal.
For more information or assistance with your vaccination policy, please contact one of our attorneys.