Hunton Employment & Labor Perspectives

The 2012-2013 flu season continues to take a toll on the workplace.  According to the Centers for Disease Control (”CDC”), this year’s flu season began four weeks earlier than most recent seasons and, as of the week ending March 9, 2013, flu season activity has remained elevated across the United States.  Having already taken the lives of 64 children, and with adult numbers  unavailable until the end of the flu season, many employers are considering the implementation of mandatory flu vaccination policies.  While such policies may serve business and safety needs of protecting their workplace and workforce, employers should ask themselves the following three questions before adopting such a policy:

1. What are the business needs for implementing the policy?
   
   Prior to implementing a mandatory flu vaccination policy, employers need to carefully evaluate the business and safety needs for the requirement.  Whether out of a concern for the safety of patients or customers or the need to ensure an adequate and fully-staffed workplace, an employer needs to be ready to identify these reasonable business interests should an employee or applicant challenge the policy.
2. Is your workforce unionized?
   
   Under the National Labor Relations Act, flu vaccination policies must be collectively bargained.  Accordingly, unionized employers cannot unilaterally impose a mandatory flu vaccination policy without first providing notice to the union and bargaining at the union’s request.  Despite this, unionized employers need to carefully evaluate the management rights clause contained in their collective-bargaining agreement.  The National Labor Relations Board recently issued an opinion finding that a union waived the right to bargain over a flu vaccination policy by agreeing to the management rights clause in the parties’ collective bargaining agreement.  Virgina Mason Hospital, 358 NLRB No. 64 (2012).  The Board recognized that this waiver allowed the hospital to require non-immunized nurses to wear face masks.
3. How will you enforce the policy?
   
   When adopting a mandatory flu vaccination policy, employers must be prepared to address objections raised by their employees.  The Equal Employment Opportunity Commission takes the view that employees may be exempt from mandatory vaccination policies based on an Americans with Disabilities Act “disability” or a sincerely held religious belief, practice, or observance.  Pandemic Preparedness in the Workplace and the Americans With Disabilities Act (2009).  Such sincerely held religious beliefs do not have to be mainstream or widely recognized religions and may include lifestyle choices such as veganism.  See Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., No. 1:11-CV-00917, 2012 WL 6721098, at *4 (Dec. 27, 2012)(the court declined to dismiss plaintiff’s religious discrimination claim when her employer terminated her employment after she refused to be vaccinated for the flu on account of her veganism).  Despite this expansive definition, the EEOC stated that it is unlikely that religious beliefs include “secular philosophical opposition to vaccination.”  EEOC Informal Discussion Letter (Mar. 5, 2012).  When an employee raises a health or religious-based objection to the vaccination policy, the employer needs to discuss reasonable accommodations with the employee.  Such reasonable accommodations may include entirely excusing the employee from the policy, requiring the employee to wear a protective facemask or temporarily transferring the employee to another position.  Employers need not offer these reasonable accommodations if providing them would cause “undue hardship.”  In determining whether undue hardship exists, the EEOC found the following factors relevant: (1) the assessment of the public risk posed at a particular time; (2) the availability of effective alternative means of infection control; and (3) the potential number of employees who actually request accommodation.  EEOC Informal Discussion Letter (Mar. 5, 2012).

In addition to tackling objections raised by employees, employers need to implement the policy across its workforce uniformly.  Employers should not  terminate summarily an employee who refuses a flu vaccination without first engaging in a discussion to determine whether the employee is objecting for health or religious based reasons.  Furthermore, employers might consider gradual discipline for first-time offenders such as issuing a letter of instruction.