This year’s flu season hit quick and hard. In fact, the outbreak is expected to be among the worst in a decade. Understandably, New Jersey employers want to take every precaution to keep their staff healthy and on the job. However, as a Rhode Island lawsuit highlights, requiring employees to get a flu shot can lead also lead to legal headaches.
Rhode Island is one of several states that require vaccinations for all health care workers. Under the state’s regulations, health care workers are required to get a flu shot during "any declared period in which the flu is widespread." Unless workers are medically exempted, those who refuse are required to wear a mask when directly treating patients. Health care workers who violate the regulations can also be fined $100 per violation and each such violation constitutes ''unprofessional conduct” with regard to their professional licenses.
Shortly after the regulations took effect, SEIU Healthcare Employees Union District 1199, a labor organization representing health care employees throughout Rhode Island, filed a lawsuit. The union points to the lack of scientific evidence that higher rates of vaccination of healthcare workers result in fewer cases of influenza among patients. It also argues that mask wearing compromises patient care by reducing the ability to communicate effectively.
Because these measure have not been shown to be effective, the SEIU argues that forcing them upon its members interferes with their right to pursue their profession in violation of the Due Process Clause. The union further maintains that the regulations conflict and interfere with health care workers' right to bargain with their employer pursuant to the National Labor Relations Act.
This is not the only lawsuit to come out of the recent flu outbreak. Across the country, private employers are also facing legal pushback after terminating employees who failed to comply with mandatory vaccination policies. For instance, an Ohio customer service representative filed a lawsuit after refusing to get a flu shot because she is vegan. A federal district judge recently refused to dismiss her claim of religious discrimination, finding that she “could subscribe to veganism with a sincerity equating that of traditional religious views.”
Due to the potential liability, employers are increasingly looking to other steps to combat the flu and promote a healthy work environment. Rather than mandating the flu vaccine, employers are strongly encouraging it, along with other steps such as encouraging employers to stay home when they are sick, promoting hand-washing, and regularly disinfecting work areas.
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