Wednesday, January 30, 2013

Employer Risks for Disciplining and Firing Employees Who Refuse a Flu Shot

Attorney Mark D. Nelson of Drinker, Biddle & Reath, LLP has a great article on employer liability in dealing with employees who refuse to get a flu shot per an employer's mandatory policy which has been somewhat of a hot issue in the last few years when the weather gets cold.  

Nelson draws attention to several laws that are at play with respect to flu shot policies:

-The National Labor Relations Act (NLRA):  "[A] flu vaccination policy is a mandatory subject of bargaining.  This means that unionized hospitals cannot unilaterally implement such a policy without first giving the union notice of the intended policy and bargain over the policy if the union requests to do so."  This is with exceptions, of course in that some collective bargaining agreements have certain waiver clauses.  See, Virginia Mason Medical Center, 358 NLRB No. 64 (2012).

-Americans with Disabilities Act (ADA):  “[a]n 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)."  The Equal Employment Opportunity Commission (EEOC) has issued a 'factoid' on the interplay between the ADA and flu vaccination policies here.

-Religious Discrimination:  "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).”

Believe it or not, an ongoing case involves an employee's claim that the vaccination goes against "veganism" and the Court has not dismissed the claim despite the employer's claim that veganism isn't a bona fide religious belief.  (Chenzira v. Cincinnati Children’s Medical Center, S.D. Ohio, No. 1:11-cv-00917 (12/27/12).)

I have previously written about this topic here and here.  

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