FLU SHOT THE SHERIFF? BUT CAN I FLU SHOT EMPLOYEES?

According to the Centers for Disease Control and Prevention, each year, on average, 5% – 20% of the U.S. population gets the flu, tens of thousands are hospitalized, and thousand die from flu-related illnesses. Each year, flu-related illnesses result in 31.4 million outpatient visits and approximately 200,000 hospitalizations.

The workplace can be a breeding ground for flu-related illnesses. A 2018 survey estimated the cost to employers of the 2017-2018 flu season to be around $9.42 billion. Employees who come to work sick, get others sick. Sick employees are less productive employees.

To address this, can an employer require employees to get flu shots? Not surprisingly, the answer is not simple.

Can I Force All Employee to Get a Flu Shot and Fire Those Who Refuse?

This definitely will not work if an employee objects on religious grounds. Federal and state law prohibit discrimination on religious grounds. They also both require employers to make reasonable accommodations to workplace policies to accommodate employees’ religious beliefs. Failing to modify a mandatory-flu-shot policy due to someone’s religious objection is a problem zone. In January 2018, a hospital in North Carolina settled a claim for $89,000 with Christian and Muslim employees who were fired after refusing to get a flu shot based on their religious beliefs.

Employers will have more leeway in this regard if an employee objects on non-religious grounds. But, courts have consistently held that what is and is not a “religion” is something they are “ill suited” to judge. As a result, courts have recognized that non-traditional faiths are entitled to be recognized as “religions” for discrimination purposes. This includes the Church of Body Modification, for example, but not the Church of the Divine Flying Spaghetti Monster.

Can I Force All Employees to Get a Flu Shot and Make Those Who Refuse Wear a Mask?

This is an approach we’ve seen more and more frequently, especially in the healthcare context. It too, however, comes with risk. In 2014, Baystate Medical Center hired Stephanie Clarke to work in its human resources department. Ms. Clarke is Christian and rejects injections of any kind. As a result, she told Baystate she was declining the flu vaccine. In response, Baystate provided Ms. Clarke with a mask and told her to wear it at all times. Several people complained that they were unable to understand Ms. Clarke when she wore the mask. As a result, she wore the mask when she wasn’t speaking, but pulled it down when she was.

Baystate determined this to be a violation of its policy and suspended Ms. Clarke without pay. Ms. Clarke complained about religious discrimination and asked that she be provided an accommodation that would allow her to perform her job duties. Baystate refused and told Ms. Clarke that she could not return to work unless she was vaccinated or agreed to wear the mask at all times. Ms. Clarke declined the vaccination and stated that she could not perform her job with the mask on at all times. Baystate treated that as Ms. Clarke’s resignation.

On June 2, 2016, the Equal Employment Opportunity Commission filed suit on Ms. Clarke’s behalf alleging retaliation, religious discrimination, and failure to accommodate her religious beliefs. That case is currently pending in federal court in Springfield.

If I am Liable Will I Pay?

Short answer: yes. What will you pay? Well, employers who are found liable for religious discrimination are subject to comprehensive damage penalties as provided for by Title VII and the Massachusetts version of that statute, Chapter 151b. This includes emotional distress damages, lost wages, back pay, front pay, attorneys’ fees, interest, costs, and punitive damages.

What Should I Do?

Employers can implement mandatory flu shot policies if they think that’s appropriate. But employers must interact with their employees relative to deviating from that policy if an employee objects to a vaccination on religious grounds. The most obvious alternative (and something that seemingly would have worked for an HR employee like Ms. Clarke) is telecommuting. Also, employers generally have the right to send apparently sick or contagious employees home or to ask them not to report to work in the first place.In this situation, be sure to allow employees to take available leave time, including that available under the Family and Medical Leave Act, the Massachusetts Earned Sick Time Law, or other workplace policies.

Have more questions about employers requiring flu shots?