News & Events

Houston Chronicle article on whether Employers can require flu shots

By L.M. SIXEL Copyright 2009 Houston Chronicle Sept. 17, 2009, 7:02AM

With some hospitals requiring their workers to have seasonal flu shots and even more considering it, a big question looms: Can employers do that?

Like many cutting-edge — and complicated — workplace trends, the answer isn’t a simple yes or no. With so much in life, it all depends on details like whether the shots are job-related and are indeed a business necessity.

“I think they can,” said Andrew Golub, an employment lawyer who represents mostly individuals with Dow Golub Remels & Beverly in Houston, referring to health care providers who are telling their employees to roll up their sleeves.

In Houston, The Methodist Hospital and the Hospital Corporation of America have imposed new mandatory requirements for employee flu shots. However, both allow exemptions for those with medical or religious restrictions.

While both Methodist and HCA said they considered the legal ramifications before rolling out their programs, there’s not much in the way of legal guidance for companies hoping to keep the flu at bay.

The only case Golub could find involves a hospital that required its union-represented employees to have flu shots. In that case, the court ruled the injections should be part of the collective bargaining process and that the hospital couldn’t just impose them on employees. But that’s a union setting, said Golub, which isn’t as common in Texas as it is in other parts of the nation.

Health care employers can also argue they have an overriding public health interest — coupled with a legitimate business interest — to require the shots, said Sean M. Becker, an employment lawyer who represents management at Vinson & Elkins. However, he pointed out, hospitals would need to consider exceptions for employees who can’t have the shots.

Public policy is already moving in that direction, he said, pointing to a new rule by New York’s State Department of Health requiring most health care workers to get flu shots. And California’s Division of Occupational Safety and Health recently issued regulations requiring employers to protect workers from airborne diseases like the flu such as providing respirators and flu shots.

And, Becker noted, the shots don’t seem to violate the federal Americans with Disabilities Act. Employers aren’t asking for protected medical information or requiring medical tests like a blood draw, he said.

It’s a preventive measure, he said. It’s not a medical exam.

But to the Equal Employment Opportunity Commission, the answer isn’t so definitive. Especially if the employee isn’t involved with direct patient contact, said EEOC regional attorney Jim Sacher, who argues it would be harder for an employer to argue it’s a matter of public safety for billing clerks to get the shot.

A company would also have to prove that an employee’s refusal to wear a mask or take a shot poses a direct threat, he said. It’s a high standard, and typically isn’t hypothetical but serious, very likely to occur and have serious consequences.

Then there’s the question of whether a flu shot is truly voluntary, he said. A company would be hard-pressed to prove it’s voluntary if the employee who refuses the shot faces disciplinary action.

But at this point it’s hard to say how the agency or judges will view mandatory shots because it’s so new, said Sacher, adding that he isn’t aware of any complaints to the EEOC.

That brings up another issue: What if employers that aren’t in health care — say, a department store chain — decide to require flu shots, figuring that it’s cheaper than paying sick employees to stay home?

It’s reasonable, said Mary Jean Geroulo, a lawyer who represents hospitals, physicians and other health care providers with Stewart Stimmel in Dallas.

But would it survive a legal challenge?

“I don’t know,” said Geroulo, a former hospital administrator. Employers have a right to create policies like dress codes, but they wouldn’t have as powerful a justification for mandatory flu shots as a hospital.