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Flu Season: An Outbreak of Issues for Employers.

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Flu season is upon us, and for many employers, that means more employees calling in sick. Healthcare settings often advise or mandate that employees receive a flu vaccination because of their contact with patients, but what about other workplace settings? Can employers require their workers to be vaccinated?

Unfortunately, there is no one-size-fits all answer to this question, but employers might want to consider offering incentive-based plans for flu vaccinations rather than relying on a mandate to avoid potential litigation.

One reason for this is because the Equal Employment Opportunity Commission (EEOC) stresses the importance of protecting employees who have medical or religious reasons to refuse a vaccination. Having a mandatory vaccination policy opens up employers to claims under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.

Employers may also be subject to workers’ compensation claims that arise from employees who experience bad reactions to a vaccination. In 2009, the EEOC asked “[m]ay an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?” The EEOC, plainly answered “No.”

For those employers who do choose to go ahead with a mandatory vaccination policy, they must have exemptions for employees who refuse to submit to vaccinations due to religious beliefs, medical/health conditions, disabilities and state-provided privacy rights.

These employers should think about setting up an exemption/accommodation review board, which would review all exemption requests and make consistent decisions pursuant to previously-designed exemption structure (i.e. company policy). Be prepared, however, for mistakes, judgment errors and employee complaints. Additionally, for employees who agree, employers might consider having them sign a consent and waiver prior to the vaccinations. The effectiveness of the consent/waiver may depend on the relevant federal or state law. It is nevertheless a good idea.

For these reasons, it might be better for employers to think about an incentive-based vaccination policy. Under such a policy, employers can offer employees days off, casual-clothes day, raffle opportunities, lunch and other perks for receiving a flu vaccination – and may even offer vaccinations on site – but they do not punish those who do not get vaccinated. That said, a non-mandatory and incentive-based vaccination-policy will not entirely insulate employers from any and all liability.

Employees can still pursue claims for injuries resulting from the vaccinations. Employees can also argue that they were unfairly pressured into submitting to the vaccinations.

Flu season also brings other issues for employer, particularly when it comes to providing time off for employees. While influenza would generally be a covered condition under many employers’ sick time or Personal Time Off policies (PTO), employers need to pay special attention to the Family and Medical Leave Act and the ADA, as some employees might claim that having the flu is a “disability” or a “serious health condition.” Most of us can recall staying home from school or work for two to three days due to the flu. This is arguably what the FMLA considers an incapacity – which is necessary for a “serious health condition.”

And the Department of Labor agrees – “[t]he Family and Medical Leave Act (FMLA) protects eligible employees who are incapacitated by a serious health condition, as may be the case with flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition.” But, employers can take some solace in that the EEOC considers “common influenza” to not be a “disability” under the ADA.

The EEOC says that “common influenza” is an example of a temporary, non-chronic impairment of short duration with little or no residual effect. Unfortunately, the EEOC does not give a similar assurance for the uncommon influenza. So, based on the broad interpretation of what is a “disability” under the ADA Amendments Act of 2008, employers should not rule out that influenza might indeed be an ADA “disability,” depending on the severity and complications.

On the flip side, what if an employee who has come down with influenza arrives at work – what can the employer do? In the interest of that employee and the health of all other employees, send the sick employee home. Since the employee is being compelled to go home, the employer should consider it an excused absence.

The employer should also not discipline the employee because of the absence. Instead, the employer should carve out another type of absence (e.g., “administrative leave”) that excuses the employee from work, but for which the employee will not suffer disciplinary action or the loss of a benefit (e.g., vacation time, PTO). Furthermore, if the employee is classified as a non-exempt employee under the Fair Labor Standards Act, the employer does not need to pay the employee when the he/she is sent home for flu-related concerns. If the employee is classified as an exempt employee, then the employer cannot dock or reduce the employees pay because of the absence.

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BIOGRAPHY

By Edel Cuadra, partner, Constangy, Brooks & Smith, LLP , originally from Managua, Nicaragua, first came to the United States to escape the political turmoil and revolution of his home country. As a child, Edel watched his older sister follow in their mother’s footsteps to become an attorney in Dallas, Texas. In so doing, Edel met Michael Maslanka, a colleague of his sister. Edel then wanted nothing more than to be a labor and employment lawyer. Ten years later, he began his career as a labor and employment law attorney in Dallas, Texas. Since then, Edel has focused his time and efforts to becoming a specialist in labor and employment law.

Now, as partner at Constangy, Brooks & Smith, LLP, Edel works with Mike and close friend, Billy Hammel. At the outset of a relationship, Edel “invests” in clients by learning and educating himself about their specific needs. To effectively represent and counsel clients, Edel believes that he must completely know and understand them. Though not immediately rewarded, Edel knows that both he and his clients will see the returns of this investment.

Edel represents management and organizations in state and federal litigation, defending clients in multiple jury and bench trials, and arbitrations. But he believes his best work is keeping clients out of the courthouse. Edel partners with clients to work through workplace matters pertaining to state and federal employment laws, including Title VII, ADEA, ADA, FMLA, FLSA, OHSA, WARN, ERISA and Texas Labor Code. On any given day, at lunch or on the telephone Edel counsels clients on the following issues: compliance, best practices, internal investigations, policies and procedures, human resources guidelines, government proceedings and investigations, employee disputes and claims, and avoiding claims.

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Growth in women's share of science, technology, engineering and mathematics (STEM) occupations declined to 27% in 2011from a high of 34% in 1990. While women make up nearly half of the workforce, they were 26% of the STEM workforce in 2011.

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