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Health & Fitness

'Tis The Season: Employers And The Flu

With the onset of flu season, employers may be hit hard by employee absences due to influenza. 

According to the Centers for Disease Control and Prevention (CDC), flu activity most commonly peaks in the United States in January or February.  However, seasonal flu activity can begin as early as October and continue to occur as late as May. 

Employers need to be prepared for legal and practical flu-related challenges.  Legal issues include the controversy over mandating flu vaccinations, while practical issues include implementing measures to prevent the spread of the virus at work. 

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Attorneys at Fisher & Phillips LLP in San Diego, a law firm dedicated exclusively to representing employers in labor and employment matters, provide the following considerations to keep in mind during the 2013-2014 flu season: 

Legal Considerations

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Last year, media reports showed a backlash against mandatory flu-vaccination policies; some employees vehemently objected to vaccinations, and in some instances anti-vaccine support groups formed.  Nonetheless, the CDC and the public health system always remain squarely in favor of the flu vaccination.  

In determining whether an employer may mandate flu vaccinations or other preventive policies, the Occupational Safety and Health Administration (OSHA) and the Equal Employment Opportunity Commission (EEOC) continue to heavily rely on the CDC's position. 

To be safe, you should conduct a risk assessment to justify vaccination demands, especially if you are in healthcare, air travel, hospitality, or food service.  OSHA notes that a risk assessment should evaluate the nature of the workplace and employee duties.  It's easier to justify a mandatory vaccination in these industries, but an employer must still consider the reasons for an employee's objection, and whether any accommodation is feasible for health or religious objections. 

An employer confronted with an employee's refusal to be vaccinated, for religious or medical reasons, should conduct an individualized analysis to determine whether the employer has an obligation to accommodate the employee's position.  The EEOC's position is that employers must engage in an individual, interactive process with respect to any employee who objects to a flu shot for religious or health reasons.

Practical Considerations

Employers also face practical challenges as they respond to sick employees and seek to maintain a safe workplace.  How should employers respond to the flu outbreak?

  • continually remind employees to wash their hands for at least 20 seconds, and provide frequent hand-washing opportunities; healthcare professionals also advise keeping hand sanitizer nearby, and to avoid touching one’s eyes, nose, and mouth;
  • educate employees about the severity of last year’s flu strain, and the potential severity for this year’s strain.  Inform them of the very few risks associated with vaccinations, and provide the guidance offered by the CDC.  In short, strongly encourage employees to receive the vaccine;
  • mandate vaccinations if necessary and feasible; as noted above, employers should consider the individual circumstances of employees who object to vaccinations; and
  • encourage sick employees to stay home if they are feeling poorly!  Employers do not need dutiful but sick employees infecting the entire workplace.

For additional information, employers can utilize the full array of private and public resources that offer advice on the flu and how to deal with it, from both practical and legal perspectives. 

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