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Fighting the Flu (and Liability) in the Workplace

As summer draws to an end, flu season is lurking right around the corner. Last year’s flu season was especially hard-hitting. Many employers have taken proactive steps in recent years to protect their workforce by offering free flu vaccines or encouraging employees to get one on their own. But, can employers go one step further and require their at-will employees to receive flu shots?

It is axiomatic that, with limited exceptions, “at-will” employees (which comprise the majority of America’s workforce), can be terminated for any reason, or no reason, at all.  Just as an employer does not need a reason to implement a vaccine policy, it usually does not need a reason to fire an employee for choosing to violate the policy. Indeed, requiring a flu shot makes good sense in many situations – especially where employees regularly engage with customers. Likewise, the case for health care workers’ immunization is especially strong, as the CDC highly recommends annual flu vaccinations for employees in this industry every October.

Mandatory vaccination policies are not, however, without controversy, as employees and advocacy groups have regularly opposed mandatory vaccinations, arguing that such policies are a violation of privacy rights.  On its face, this argument appears to lack merit. Although employees do have a basic privacy right over their own body, they do not have a right to at-will employment. Thus, while the employee is free to refuse a vaccination, an employer is, ostensibly, just as free to terminate the employee for his or her refusal.

Despite the seemingly straightforward analysis for at-will employees, a recent case has examined mandatory vaccinations in light of certain protected rights and classifications, such as religion and disability accommodation. This case could provide guidance on the limits of an employer’s right to  require vaccinations. Check back on Wednesday for a specific analysis of this issue based on Chenzira v. Cincinnati Children’s Hospital Medical Center, S.D. Ohio No. 1:11-CV-00917 (Dec. 27, 2012). 

This article is intended as a summary of newly enacted federal and state law and does not constitute legal advice.

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