Wash Your $!&# Hands! Employers and the Flu

The CDC reports that the current flu season will be the worst one in recent years. On January 9, news outlets carried stories about the City of Boston declaring a state of public health emergency and of Chicago hospitals having to send flu patients to other hospitals. Today, January 10, the New York Times described the triple threat of this year’s flu season: an early and unusually virulent flu outbreak, a surge in a new form of norovirus (cruise ship sickness) and the worst whooping Cough outbreak in 60 years.  There is similar coverage at other outlets.  To put it mildly, employers are already being harmed by absences and the plague-like spread of flu in their workplaces.


As bad as these challenges may be… they are accompanied by legal challenges as employers respond to sick employees, mandate Flu vaccinations, and seek to maintain a safe workplace.


On a practical level, employers and individuals should review CDC Guidance and take the steps recommended, including frequent hand washing and vaccinations.


Employment Law Issues, include


1.         Performing a Risk Assessment to justify vaccination demands and other safety and personnel responses; and


2.         the necessity of engaging in an individual analysis of employee refusals to take vaccinations due to religious or ADA concerns.






There is excellent safety, health and employment law guidance at the flu.gov site.  The archived Pandemic site provides practical guidance, especially the “FAQ’s” for employers.  Other resources and links are found at the CDC Seasonal Influenza siteOSHA has a webpage with useful links.




Sad to say, the number one thing we can do is constantly wash our hands, and avoid touching one’s eyes, mouth and nose.  Also, keep waterless hand soap nearby and in your vehicles, and wash your hands in running water for at least 20 seconds whenever you can do so.  And stay home if you are sick . . . employers do not need dutiful workers infecting the entire department. You may need to liberalize PTO policies.  I wish that we could direct you to more sophisticated advice.


Even more importantly, encourage employees to take this year’s Flu vaccine because this year’s  vaccine is reportedly effective against the most prevalent current flu strain.


Mandatory Flu Vaccination Is A Hot Issue


Unfortunately, as discussed in the news outlets, many employees do not want to take vaccines and groups have formed to support employees refusing vaccinations.  Healthcare employers often make flu shots mandatory and have had success in requiring employees to take flu vaccination as a term of employment.  If you Google “mandatory flu vaccine,” you will pull up articles chronicling “hundreds of healthcare workers being fired for refusal to accept vaccination.  USA Today recently ran an article critical of requiring flu vaccination, but the CDC and the public health system is squarely behind the vaccination.


Legal Issues


In determining whether an employer may mandate flu vaccinations, OSHA, the EEOC, and other Agencies heavily rely on CDC positions, whether the issue is vaccination or response to employees with infectious diseases.  A 2009 OSHA Interpretation Letter largely deferred to healthcare employers’ Risk Assessment following CDC guidance.  The nature of the workplace and employee duties should be evaluated in a Risk Assessment.  Some workplaces may have more problems than others in justifying a mandatory requirement.


However, an employer must still at least consider the reasons for an employee objection and whether any accommodation may be feasible in the face of health or religious objections.


The EEOC position is that the employer must engage in an individual interactive process in response to religious or health-based (ADA) objections, and consider “direct threat” and accommodation options.  The EEOC set out how it would analyze employers’ obligation to accommodate religious objection in a March 5, 2012 Informal discussion Letter.


In one odd recent decision, a federal court allowed a former children’s hospital worker to proceed with her religious discrimination claim that she objected to the flu vaccination because she was a Vegan.


A Unionized employer must also adhere to its collective bargaining agreement and may have a duty to bargain about flu prevention policies.  In Virginia Mason Hospital the NLRB recently held that a hospital could unilaterally implement a flu prevention policy because the union agreed to a broad management rights clause in the collective bargaining agreement.  Contract provisions will vary.  Mandatory Flu vaccination is a very inflammatory issue with some employees and a number of healthcare unions have seized upon this issue to promote in both unionized and non unionized sectors.


Finally, the CDC maintains a list of state laws which may affect an employer mandating flu vaccinations.  It is possible to encourage or pay for vaccinations without additional legal risk if one does have a reaction.




Educate employees about the severity of Flu and the few risks associated with vaccinations – provide CDC guidance as explanation.


As with any safety procedure, provide hand washing opportunities and continually remind employees.


Encourage sick employees to stay home and use PTO as needed.


Conduct a risk Analysis, especially if you are in healthcare, air travel, hospitality, and food service.


Encourage vaccinations and if necessary, mandate them.


Consider each employee on an individual basis who objects to vaccinations.




Howard Mavity


About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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