Published January 18, 2013
No employer wants their workers coming into the office while coughing up a lung, especially when the flu is running rampant across the country. But, would you actually ask your workers to be vaccinated? And can you fire them for refusing to comply?
Tristate, a health-care company in Cincinati did just that this year, laying off over 100 workers who failed to receive their flu vaccinations by the December 3 deadline, FOX19.com reported. Similar terminations have popped up in Florida and Pennsylvania, all at hospitals and health-care companies.
Polly Wright, senior consultant at HR Consultants, said certain states such as Ohio are requiring hospitals have their employees vaccinated the same way other shots have been mandated.
"States are putting pressure on health care employers because of the way they interact with patients," Wright said. "Here in Pennsylvania, we have had nursing homes do this as well, because the flu spreads like wildfire, and that puts stress on the residents and staff as well."
Before working at businesses that are in the health-care sector, employers often have their workers go through pre-employment medical screenings. Having them get the flu shot would fall into the same category, Wright said.
Even a consulting firm or retail business would be able to require workers to get the shot, she said.
"However, there is less of a ground for employers to terminate you if you choose not to get a flu shot," in those industries, Wright said.
Employees do have the right to refuse getting the shot, and if they are refusing for religious reasons, or moral grounds, may even have means for a lawsuit if they are terminated and do not work in an at-will state, Wright said. At-will states, including New York, certify that private employers have the right to terminate workers "at-will" and do not need to give cause.
For example, one nurse from the Cincinati Children's Hospital Center is actually suing for $650,000, after refusing the shot due to her beliefs as a Vegan, according to the Columbus Dispatch.
So the bottom line is, private employers can ask that their workers be vaccinated, and do have the right to terminate them in at-will states if they so choose. There are legal risks for doing so, if the worker is using class protection as their reason. Wright said lawsuits are infrequent in this situation, as are terminations.
"Employers may encourage [vaccinations] because of the devastation [illnesses] can cause to their employees," she said. "And in a non-healthcare setting, there really is no law that says you can't fire someone who won't get a flu shot. But the protections of the EEOC (Equal Employment Opportunity Commission) make it almost impossible to do."