Tip Tuesday: Should employers require employees to have flu vaccinations?

Experts: Encourange, Don't Require, Flu Shots

Thinking about requiring your employees to get flu shots? It’s tempting: A survey from Walgreen’s drugstore chain found that companies paid more than $10 billion in paid sick days during the 2010-11 flu season.

But the legal headaches from mandating the vaccination might be more painful than the aches and chills of the flu itself, said Edel Cuadra, a partner in the Dallas office of national labor and employment law firm Constangy, Brooks & Smith, LLP. Forcing employees to get flu shots brings up issues with the U.S. Equal Employment Opportunity Commission, Title VII of the Civil Rights Act and the Americans with Disabilities Act Amendments Act (ADAAA).

“Any time you have a policy without wiggle room, you’re going to get yourself in trouble,” Cuadra said. “There are exceptions to every rule.”

Employees can have medical or religious reasons for refusing a vaccination. For example, people with allergies to eggs (the vaccine is grown in chicken eggs) or with a history of Guillain-Barre syndrome should not get the flu shot. Religious reasons include not wanting to receive a vaccination because some faiths have tenets that prohibit invasions of the body or that disallow animals to have been harmed in the making of the vaccine.

Some health care businesses have required their employees to be vaccinated or wear a surgical mask for the flu season—which can last for several months. A clinic in Boston saw its percentage of vaccinated employees jump from 70 percent to 96 percent when it imposed this requirement. However, Cuadra discourages the practice.

“That’s like a scarlet letter—it singles (the unvaccinated employees) out for adverse treatment from co-workers,” Cuadra said. “That’s not going to be good for morale.”

And those employers will run up against the ADAAA, Cuadra said, because unvaccinated employees might then be “regarded as” having the flu, especially if they make the employees wear a mask.

A better way to encourage employees to get the flu shot is through education and incentives, Cuadra said. If employers want to require employees to get the vaccine, the U.S. Occupational Safety and Health Administration encourages employers to educate the recipients on the benefits of the vaccine.

“Get the employee buy-in; that’s critical. Otherwise, [demanding the vaccination] is invasive and overstepping,” Cuadra said.

Employers can offer time off to go get the shot or as a reward for getting vaccinated, a monetary reward, or a casual dress day if the employee gets the shot before a certain deadline, he suggested. One colleague who works at a nursing home arranged a pizza party in conjunction with on-site flu shots, Cuadra said. Employees lined up for their flu shot, then lined up for their free lunch.

“It worked wonderfully, and everyone was grateful for it,” Cuadra said.

As a disincentive, employees who don’t get the shot could be required to take time off with a notice of violating policy or a failure to adhere to the policy slipped into their personnel folders. But firing employees for not getting the shot might be a step too far, Cuadra said. 

“You’re going to get in more trouble, taking that stance,” he said.

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