Employers: Be Wary of Vaccine Mandates

As the seasons begin to change, bringing with it cooler temperatures, serene colorful landscapes, and the rapidly approaching holiday shopping season, so too comes the 2011-2012 flu season.  According to a study by the Walgreen’s drugstore chain, during last year’s flu season, employers nationwide lost nearly 100 million work days, $7 billion in lost wages, and over $10 billion in lost productivity, all directly related to employees’ flu-related symptoms.

Mandates Are a Bad Idea

In an effort to combat the high costs of employee illness, some employers are considering requiring their employees to receive an influenza vaccination. The actual cost is low; approximately $25.00 per vaccination, when compared to the amount lost due to lost productivity and paid time off related to employee flu symptoms. However, while the prospect of cost savings may be attractive, employers should be wary when considering whether to require employees to be vaccinated. The potential legal ramifications and costs could be colossal.

If an employer institutes a policy or otherwise requires its employees to receive flu shots, it could be subjecting itself to potential liability under Title VII of the Civil Rights Act, the Americans with Disabilities Act Amendments Act (“ADAAA”), the Pennsylvania Human Relations Act, and other various state and local laws that protect employees from discrimination in employment. For instance, many employees have religious or medical objections to receiving the vaccine. Further, since the vaccine is grown in chicken eggs, many employees are allergic to the vaccine or may have religious or moral objections to receiving the vaccine. Therefore, a policy mandating employees receive a flu shot may be more costly than the lost productivity or paid time off due to the flu.

Employers should also avoid taking steps to single out employees who do not receive a flu vaccine, such as making employees wear surgical masks at work, because this too could be costly, both in low employee morale and potential liability under the expanded definition of “regarded as disabled” under the ADAAA.

What Can Employers Do?

If employers truly want their employees to receive an influenza vaccination, they should take steps which encourage, as opposed to require, employees receive the vaccination. For instance, as recommended by the U.S. Occupational Safety and Health Administration, employers should educate their employees on the benefits of receiving the vaccination. Additionally, employers may want to incentivize their employees to receive the vaccine by offering the vaccine at low cost at work, providing refreshments at an employer sponsored vaccination site, or holding a contest for the department with the highest percentage of vaccinated employees. The Centers for Disease Control even sponsors a toolkit for employers to effectively encourage and promote flu shots in the workplace.

Please feel free to contact the Employment Group with any questions regarding implementation of any employment policy or program to effectively encourage flu vaccinations in the workplace.

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