The flu cost U.S. employers an estimated $21 billion in lost productivity last year. The 2018-2019 flu season is just beginning. What should employers do to avoid crippling productivity?
One option is requiring each employee to be vaccinated each year against influenza. This option is very effective at limiting the impact of flu in the workplace, but it can also lead to friction with employees who choose not to be vaccinated. Employers are generally permitted to mandate flu vaccines, but they must consider exemption from the requirement as a reasonable accommodation for an employee’s medical or religious concerns. At least one federal court has held that veganism could be a valid “religious” objection to a vaccination requirement even if the employee’s veganism is not grounded in a specific religion. Traditional flu vaccines use eggs, and therefore are not vegan, although alternative vegan vaccines are available. When an employee is granted an exemption from the vaccination requirement, consideration of alternate measures should be made. For example, some employers, typically in healthcare settings, require non-vaccinated employees to wear face masks.
Employers should consider how they will handle employees without medical or religious reasons who choose not to be vaccinated. Absent a contract or other legal requirement limiting an employee’s ability to be fired for any reason, it would be legal to fire such employees. However, employers must consider whether this is what they want to do and be prepared for addressing the practical ramifications of such a decision.
Employers considering a vaccination requirement should work with employees to generate support for the initiative. In a unionized setting, employers should consider whether their management rights clauses would encompass a unilateral requirement for vaccination.
Employers can also encourage vaccination, without requiring it, along with other hygiene-oriented measures. Some options to consider are:
- Distributing information on the flu vaccine from public health organizations and agencies;
- Holding vaccine clinics where employees can receive vaccinations at work;
- Setting vaccine participation rate targets and rewarding the entire workforce if they are met;
- Encouraging hand-washing (scented soaps can go a long way);
- Placing hand sanitizer and sanitizing wipes throughout the workplace;
- Requiring employees to wear face masks if they are not vaccinated or if they are coughing or sneezing;
- Sending employees home if they are sick and requiring the use of paid time off, if available, to cover the absence; and
- Encouraging telecommuting and avoiding in-person meetings during flu season.
Mandating vaccination tends to dramatically increase vaccination rates over even the best of efforts to encourage vaccination, so employers may have strong reasons to opt for a mandate, particularly in healthcare or childcare settings.
Our team of labor and employment attorneys can assist employers with all aspects of the employer-employee relationship, including creating vaccination programs.