© 2014 The Texas Lawbook.
By Natalie Posgate
Staff Writer for The Texas Lawbook
(February 24) – Though the flu season appears to be dwindling, with sunny skies and highs of 75 recently emerging in the Lone Star State, the Texas Department of Health Services says it’s not quite out the door.
DOH, in a report published Friday, said 13 percent of the 1,303 Texans who were tested from Feb. 9 to Feb. 14 tested positive for the flu virus.
Texas workers who have not gotten the flu shot are not only risking their health; they also may be risking their jobs. Labor and employment experts say that it is legal for employers to require their workers to get the flu shot, and if they don’t comply, they could be fired.
One reason employers are cracking down on the flu vaccine certainly lies in the numbers.
According to recent media reports, the North Texas area alone has seen at least 60 flu-related deaths in the 2013-2014 flu season. As of mid-February, Travis County has lost at least 16 to the flu, and at least 13 people have died from the H1N1 virus in Houston since late December.
“If the question is why do we need this at all, I think the answer is in the numbers,” said Mike Abcarian, the Dallas managing partner of labor and employment firm Fisher & Phillips. “Texas is definitely one of the places where the outbreak of flu is more prevalent.
“The toll on lost time in the workplace can be significant in January and February during the height of the flu season,” he added. “I think it’s a relatively innocuous requirement that helps the workforce be able to work and not put anyone at risk.”
Abcarian and other employment law experts pointed out that the health care industry especially has been in the spotlight for adopting a mandatory flu vaccine policy.
“I’d say almost every employer throughout the state that is in the health care industry will have some sort of policy that addresses flu shots [ranging] from voluntary to mandatory policies,” said Jonathan Wilson, a Dallas shareholder of the global labor and employment law firm, Littler Mendelson.
In 2012, an advisory committee to the Department of Health and Human Services recommended that physician practices, hospitals and other health care employers should strongly consider mandating that their employees receive influenza vaccinations if they fall short of a 90 percent immunization rate on a voluntary basis.
Though meeting a 90 percent requirement may seem daunting, Abcarian said it can simply become feasible for employers if they set up a free or discounted flu shot clinic in the office or offer to pay for the employee’s vaccination if they get it done at their own doctor’s office.
The Occupational Safety and Health Administration responded to this recommendation, stating that there is insufficient evidence to support a mandatory vaccination program as a safety requirement.
But Dallas managing shareholder Bryant McFall of Ogletree Deakins said because Texas is an employer-at-will state, most employers will not face repercussions if they terminate an employee for not following a mandated flu vaccination policy.
“In Texas, there’s absolutely nothing wrong with taking a hard line of mandating that everyone takes a flu vaccine, and terminating employment if they refuse,” McFall said.
McFall did point out that there are exceptions to this rule, however. Employers cannot mandate flu vaccinations if it would go against an employee’s religious beliefs or if it would harm an employee or weaken his or her immune system due to a medical condition or disability. These issues can relate to laws under the Americans with Disabilities Act and the Equal Employment Opportunity Commission.
Though it was not in Texas, Wilson said he knew of an EEOC case in Ohio that arose because an employee alleged she was being subjected to religious discrimination for failure to comply with her employer’s mandatory flu vaccination policy.
Abcarian, Wilson and McFall said so far they have not seen any legal disputes arise from these issues in their own practices, but they have advised clients with policies related to health in the workplace, including flu shots.
He hasn’t seen it yet, but McFall said he could envision a negligence lawsuit arising if a business that heavily interacts with its customers, such as a restaurant, doesn’t require its employees to receive the flu vaccine and a customer catches the flu after eating at the restaurant.
Legal issues aside, McFall said developing a flu shot policy could promote good will.
“It sends a message to your customers or clients that you take their health seriously and are taking steps that are reasonable to ensure they are protected,” he said.
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