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Friday, November 30, 2012

No Flu Shot? That's a Firing

Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations
: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

3 comments:

  1. I think there are some industries that require a greater level of healthcare protection than others - and the medical field is one of them. (Or working as a plumber or rubbish removal person!)

    There is to me a raft of difference between a flu shot and a Hep B or MMR immunisation. Influenza is an endemic illness that is short duration, rarely life threatening, and as a constantly changing virus needs to be redone year upon year. Other diseases we immunise against are in a different category, and if you were working in a role as a midwife for example I think it's reasonable to expect you to be immune to pertussis (whooping cough), rubella and Hep B. Front line medical field staff are exposed to so many illnesses, and many have infectious incubation periods where the risk to other already ill patients needs to be considered.

    150 staff suggests to me though that it was far more than frontline medical staff.

    As a person who reacts quite negatively to immunisations I feel people should have the right to refuse if they are not placing other people at risk - but then they need to consider whether they want to keep working in an industry where they will be exposed to many illnesses, where they risk transferring them to patients with high risk factors, and whether they can afford all the potential time off sick.

    I think the employer has got it wrong - I think it's a frontline staff requirement (unless covered by discrimination legislation), but back of house or non-public staff should probably be allowed to choose.

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  2. I agree with iponder, that the policy should be better defined. Certainly with some people in healtcare - secretaries, technicians, janitors and the like - the actual possiblity of transmission of flu to patients is low. For these people sick time that is generous and easy to use mostly cuts off transmission from them to others. Nurses and doctors in fields where they may transmit the flu to vulnerable people? Unless they have a health problem that precludes getting a flu shot they should be required to get it. Why? FLU KILLS. It might only be the very old, very young, or the very sick, or the pregnant but it still kills. With the way sue-happy people are going, it won't be long (if it hasn't happened already) before someone sues for getting the flu. I bet a lot of companies are weighing future ligation against manadates like this. Other considerations - comparing someone's life against not getting any vaccine? As far as rights go, someone not dying trumps not getting a shot once a year. I'm not saying a blanket policy like this is right, but for some people working in healthcare, this is the best policy in regards to the health of the patients.

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  3. Getting fired for not getting a flu shot sounds absurd to me. Especially before Thanksgiving. Whether get a flu shot or not is personal freedom. Can't believe there is a growing trend in the healthcare industry to require an employee to insert something unwillingly into their bloodstream. The world is crazy. Thanks for your info. See Labor law compliance posters for more information on jobs.

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