Mandatory Flu Shots Not Recommended

Requiring employees to get a flu shot might be too risky, according to legal experts.

The New York State Department of Health has issued emergency regulations requiring health care facilities to vaccinate all personnel for influenza, except those with no patient contact and those with other health conditions preventing immunization.

But “Outside of first responders and medical institutions, it is hard to imagine a need for such an extreme policy,” said David Barron, an attorney with Epstein Becker & Green. “Instead of making the flue vaccination mandatory, employers can encourage their employees to get vaccinated and can even facilitate having the vaccination offered on the premises with the assistance of a medical professional.”

Making flu vaccinations mandatory raises compensation and labor relations issues. “If the situation becomes more severe than expected and employers are either being required to have their employees get vaccinated or are permitted to require it, employees should be paid for this because it arguably would be work time,” said Steve Biddle, an attorney with Littler Mendelson in Phoenix.

Written by Allen Smith, excerpted from the November issue of HR Magazine.

Note: Posts on this blog are for information purposes only, and are not legal advice.

Facts on Employment Laws and H1N1 Flu

Is H1N1 flu a serious health condition under the Family and Medical Leave Act (FMLA)?

            It could be. The FMLA rule states that “ordinarily, unless complications arise, the common cold, the flu … are examples of conditions that do not meet the definition of a serious health condition.” However, complications can arise with H1N1 flu.

Is H1N1 flu an American with Disabilities Act disability?

            Probably not, since it usually is short term.

How might Fair Labor Standards Act requirements apply to employees who are out because of H1N1 flu?

For exempt employees, time away from work can be unpaid as long as it is in full-day increments if it is voluntary and initiated by the employee. For time off mandated by employers, the time away from work for exempt employees can be unpaid only in full-pay week increments. For nonexempt workers, time away can be unpaid, subject to paid-leave policies.

− Allen Smith, J.D., HR Magazine, October 2009