Can you make getting a flu shot a condition of employment? The short answer is yes. The practical answer, however, is probably not. Firing someone for noncompliance with a healthcare policy is a grey area that might take a judge with the wisdom of Solomon to settle. Do you really want to offer up a test case?
I made the decision that our company would provide, at no cost to employees, an annual flu vaccine in late fall. Surprisingly, 25% of our workforce declined. Four different reasons emerged: the one time they had gotten a flu shot is the only year they actually got the flu; rumors circulated that a few people died after taking a flu shot; one expressed paranoia that the government tainted flu shots as some sort of mind control weapon; another claimed religious sanctions against vaccination.
The dissenting employees unanimously felt it would violate their personal belief systems, and possibly their civil rights, to be forced to take an injection. Some attorneys agree; federal lawsuits have been filed in Washington, Nevada and other states where employers have made flu shots mandatory, even when the business or institution has agreed that workers have the choice of shots or wearing a surgical facemask throughout the flu season.
If I wanted to assure the healthiest possible workplace for the majority of workers who did take the shot –- or if I were simply a hypochondriac myself – I could override the objections and force compliance, terminating noncompliant employees. Wisconsin, like every other state except Montana, is an “at will” state, meaning employees can be fired without cause.
However, being an at-will employer does not mean I can fire people with disregard to their civil rights. The woman whose religion prohibited vaccination would be protected under anti-discrimination laws. Union shops cannot change conditions of employment established through the collective bargaining agreement process. And employment contracts, where in place and which do not include vaccination as a condition of employment, nullify the compliance demand.
Then there is the issue of unemployment benefits. “Downsizing” or “eliminating a position” is a situation in which the employee bears no culpability and so the termination does not infringe on their benefit eligibility. However, if you are firing for “cause”, in this case, refusal to be vaccinated, you are establishing employee culpability, which could potentially affect benefits. Would that flip the retribution switch? Also, you do not have the right, as an at-will employer, to force a policy which could intentionally inflict emotional distress. The at-will status can be, and is, challenged every day and it can become an expensive legal Catch 22 in the right arena.
If you feel very strongly that you have not only the right, but the obligation to ensure a healthy workforce, before you mandate vaccines, consider these kinder, gentler measures:
1) Make sure your healthy workplace policy is put in writing in your employee handbook and that staff sign an acknowledgement form signifying that they have read the handbook at the time of hiring, or during an annual review period. Include a disclaimer sentence that the handbook does not imply a contractual agreement between employer and employee or you may be voiding your “at will” status by implication of a contractual employment agreement.
2) Offer to provide free workplace vaccinations (your insurance policy may allow this) or to reimburse the cost at employer-approved third-party sites.
3) Encourage sick employees to stay home, and if you need to re-evaluate your sick time policy to make a more generous allowance for super-flu years, it might save you $$ in the long run.
4) Establish a policy that contagious employees can work from home where possible, to prevent people from showing up because they are saving vacation days for pleasure and not for mandated personal time off when they feel they could be working. If you don’t make the allowance, they will come in and three more people will be out sick the next week.
If you know that Bob Doe or Jane Smith is likely to fraudulently take advantage of an expanded sick time allowance at your expense, that’s a termination you should be considering anyway, for other reasons.
Flu seasons come and go, and as we bid this year’s ado and write policy to prevent our worst experiences from happening again next flu season, let’s turn our attention next week to another H.R. area: three interview questions that reveal everything.