Flu Season for Employers

Published:  December 12, 2018


It’s official. Flu season is back. Many of us are keeping our fingers crossed that we won’t have to suffer the fevers, congestion, sneezing, fatigue, and other symptoms this year. For employers, flu season adds an extra burden, including the operational burden of staff absences. For employers in some industries that work with vulnerable clients, such as health care, elder care, or child care, flu season creates substantially greater concerns. For employers in these fields, flu season creates a legal minefield that must be navigated with extreme care.

The United States Center for Disease Control (CDC) estimates that 48.8 million people were sick with the flu during the 2017-2018 flu seasons, which resulted in 959,000 hospitalizations and 79,416 deaths in the United States. The large majority of influenza activity occurs between December and March every year. As we know, employees in some industries are at a higher risk of exposure and/or present a more significant risk of communicating influenza to susceptible clients or patients. While the CDC recommends the flu vaccine for most individuals, the CDC publishes specific recommendations for vaccination for employees in some industries. For example, the CDC recommends that healthcare workers receive an influenza vaccination yearly. Specifically, the CDC recommends getting the influenza vaccination in October because it takes a few weeks after the vaccination for antibodies to develop in the body. To protect workers and clients/patients, some employers have adopted mandatory vaccination policies. However, this creates a substantial risk of liability.

Throughout the country, employers are faced with the problem that some employees object to vaccination or immunization on religious grounds. While some religions object to vaccination generally, others object to vaccination on the grounds that the vaccination may contain ingredients, such as preservatives or stabilizers, that adherents are prohibited from ingesting or otherwise introducing into their body. Therefore, requiring an employee to obtain a vaccination may constitute religious discrimination according to the United States Equal Employment Opportunity Commission (EEOC). In fact, the EEOC has been very aggressive in filing charges against employers that do not allow religious exemptions to mandatory vaccination policies.

In October of this year, the EEOC filed a lawsuit against a Tennessee hospital for violating Title VII of the Civil Rights Act for ordering an employee to obtain a flu shot despite his objection on religious grounds. The hospital maintained a policy that all employees needed to get a yearly flu vaccination. When the employee refused to obtain a flu vaccination, the employee was terminated for violating the hospital’s policy. According to the EEOC, the employer denied the employee a reasonable religious accommodation in violation of federal law. The EEOC filed a lawsuit against the hospital in federal court seeking injunctive relief, back pay, compensatory, and punitive damages. This case is similar to another case from February of this year, wherein the EEOC sued a healthcare provider for rescinding a job offer because the applicant refused an influenza vaccination.

This problem is made even more complicated because some employees object to vaccination on non-religious grounds. Although anti-vaccination groups have existed for almost two hundred years, anti-vaccination advocates have been highly publicized in recent years. However, employers are limited in their ability to probe into whether an employee’s objection to vaccination is religious in nature. In March of this year, the EEOC filed a suit against a nursing home for requiring an employee to provide a note from a clergy member supporting her claim that she objected to vaccination on religious grounds. In November of this year, the EEOC argued that an employer hospital could not require an employee to show an understanding of the religious principles justifying their religious objection to vaccination. In fact, an individual’s religious protected religious belief is not invalidated even if the religious group to which they belong does not actually accept or teach the specific claimed belief.

Massachusetts law does not provide a real answer. Massachusetts’ regulations governing the licensure of hospitals require hospitals to ensure all personnel are vaccinated with seasonal flu vaccine. However, the same regulations state that hospitals shall not require an individual to receive the vaccine if the vaccination would be detrimental to the individual’s health because of a health condition, if vaccination is against the individual’s religious beliefs, or if the individual declines the vaccine.

One recent case, in the US District Court in the District of Massachusetts, ruled in favor of a hospital’s decision to terminate an employee for refusing a flu vaccination on religious grounds. In this case, the court ruled that the decision was justified because exempting the employee from mandatory flu vaccination would create an undue hardship. Specifically, the Court stated:

“Health care employees are at high risk for influenza and can be source of the fatal disease because of their job. Numerous medical organizations support mandatory influenza vaccination for health care workers. The medical evidence in this record demonstrates that the single most effective way to prevent transmission of influenza is vaccination. […] The Hospital decided to achieve the safest possible environment for its patients. With the exception of those with medical issues, the Hospital sought as close to total compliance as possible by requiring all persons who work in or access patient-care areas to be vaccinated. [The Plaintiff] worked in a patient-care area. She worked closely with patients, regularly sitting near or touching them as she worked on their admission to the Hospital. Had the Hospital permitted her to forgo the vaccine but keep her patient-care job, the Hospital could have put the health of vulnerable patients at risk. To allow Robinson to avoid relatively more vulnerable patients and not others would have been unworkable as well. It would have forced the Hospital to arrange its work flow around uncertain factors.  On this record, accommodating Robinson's desire to be vaccine-free in her role would have been an undue hardship.”

This case shows that there is an extremely high standard, albeit not impossible, to show that an employer cannot allow a religious exemption to mandatory immunization. The specific factors supporting a decision not to grand an exemption must be compelling. As the other EEOC litigation cases show, these factors are often insufficient, even in highly sensitive environments such as hospitals. If your company is considering a mandatory vaccination policy, you must be extremely careful to avoid running afoul of the EEOC.

If you have any questions about discrimination in the workplace or about any employment law related matters, please contact the attorneys at Royal, P.C.