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One "Flu" Over the Cuckoo’s Nest: Fighting the Flu without Fighting Lawsuits

Flu season is upon us and many employers may wonder how they can prevent the spread of the flu in their workforces. Mandating flu shots can be tricky, as employees may refuse on religious or medical grounds. In fact, the EEOC has sued several employers under Title VII this year for terminating employees who refused flu shots on religious grounds.1

Some employers may be able to overcome an employee’s religious objection to a flu shot, if they demonstrate that accommodating the employee would pose an “undue hardship.” Facts relevant to undue hardship in this context include whether there is a high degree of risk to the public and whether alternative means of infection control exist. One court, for example, recently upheld a hospital’s denial of a religious flu shot exemption for an employee with direct patient contact, holding that accommodating the employee would pose undue hardship to the employer because the increased risk of infecting already vulnerable patients could either cause or increase safety risks or the risk of legal liability for the employer.2

Like Title VII’s protections for religious objectors, the Americans with Disabilities Act (the “ADA”) protects employees who refuse the flu shot based on medical conditions that might be aggravated by the vaccine. While an employer may still deny an accommodation if it poses an “undue hardship” to the employer, the undue hardship standard under the ADA is much higher than for those claiming religious exemptions under Title VII. Under Title VII, the employer only needs to show that the accommodation would impose more than a de minimis cost, whereas under the ADA the employer must show that it would incur a significant difficulty or expense.

If the employer’s workforce is unionized, this may pose an additional hurdle to mandatory flu shots. The National Labor Relations board has held that employers must bargain with their employees’ union before requiring flu-prevention measures such as vaccinations and face masks.3

Aside from requiring flu shots, employers can require employees to go home if they exhibit flu-like symptoms. Employers can also require sick employees to provide a doctor’s note before returning to work. Employers need to exercise caution in making inquiries about an employee’s medical conditions. While it is probably okay to ask employees if they are experiencing flu-like symptoms, the employer can’t take employees’ temperatures or conduct other medical exams—these clearly violate the ADA. Also, in warning other employees about possible exposure to the flu, and in all other stages of dealing with an employee’s illness, the employer should remain mindful of its obligation to keep employees’ private information confidential.

Finally, an employer can require employees to engage in infection control practices such as regular hand-washing and wearing gloves and face masks. As with flu shots, however, employers must carefully consider any accommodation requests based on religion or disability, and all flu-related requirements must be non-discriminatory and non-retaliatory.

1 EEOC v. Saint Vincent Health Center, No. 1:16-cv-00234 (W.D. Pa. Sept. 23, 2016); EEOC v. Baystate Medical Center, Inc., No. 3:16-cv-30086 (D. Mass. June 2, 2016); EEOC v. Mission Hospital, Inc., No. 1:16-CV-00118 (W.D.N.C. Apr. 28, 2016).

2 Robinson v. Children’s Hosp. Boston, No. CV 14-10263-DJC, 2016 WL 1337255 (D. Mass. Apr. 5, 2016), appeal docketed, No. 16-1495 (1st Cir. May 5, 2016).

3 Virginia Mason Hosp., 357 N.L.R.B. 564 (2011).

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.