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The Dos and Don’ts of Implementing a Mandatory Flu Vaccine Policy Outside the Hospital Setting

As health experts describe this flu season as one reaching epidemic proportions, many employers are questioning the legality of requiring their employees to receive a flu vaccine shot when they recognize business and safety needs for ensuring their work environments and workforce are better protected from the flu virus. This need is especially acute for non-hospital employers who care for individuals with compromised immune systems, such as rehabilitation centers or schools. While a different set of considerations come into play when a hospital is assessing how to implement a flu vaccine policy (see our post from January 24, 2013 – “Firing Employees Who Don’t Get Flu Shots: What Risks Do Hospitals Face”, Mark Nelson), non-hospital employers have business needs and health concerns that may make implementation of a flu vaccine policy desirable or necessary.

So, what should an employer consider before implementing such a policy?

DO evaluate the business need for the policy. Whether it be concern for patients, clients, or customers or, rather, a need to ensure that your workforce is less likely to be on leave due to a flu outbreak, an employer must be prepared to identify its reasonable business interest if the policy is challenged.
DO consider what type of policy suits business needs. Some employers are implementing mandatory policies for all employees to receive a flu shot. Others are only requiring that certain categories of employees receive a flu shot, i.e., those with regular access to patients or individuals with compromised immune systems. Still others are implementing a policy that “strongly encourages” flu vaccinations.
DO review any applicable Collective Bargaining Agreements. Under the National Labor Relations Act, a flu vaccination policy is a mandatory subject of bargaining. This means that a unionized employer cannot unilaterally implement such a policy without giving the union notice of the policy and bargain over the policy if the union requests. However, as set forth under recent National Labor Relations Board caselaw, a union may waive a right to bargain over such a policy by way of a Management Rights Clause. See Virginia Mason Medical Center, 358 NLRB No. 46 (2012). If unionized, employers should evaluate the breadth of their clause to see if the union has waived the right to bargain regarding the employer’s right to direct employees, to determine materials and equipment to be used and/or to implement improved operational methods and procedures. In the Virginia Mason case, the NLRB specifically recognized this type of waiver language as permitting the Medical Center to require non-immunized nurses to wear facemasks.
DON’T refuse to engage in an interactive process with any objecting employees. Employers should be prepared to work with an employee’s health or religious objections to receiving a flu shot. The Equal Employment Opportunity Commission has taken the position that employees may be exempt from a mandatory vaccination requirement based on an ADA disability or a “sincerely held religious belief, practice, or observance.” See www.eeoc.gov/facts/pandemic_flu.html -48k-2009-10-21. Courts have recognized that such sincerely held” beliefs may include lifestyle choices such as veganism. See Chenzira v. Cincinnati Children’s Medical Center, No. 11-917 (S.D. Ohio, December 27, 2012). In such instances where an employee expresses a health or religious-based objection to a mandatory flu vaccine policy, the employer should discuss reasonable accommodations with the employee, e.g., exempting the employee from the policy entirely, transferring the employee to another position temporarily (until the flu threat ends as determined by local health officials) or permitting the employee to wear a facemask when in proximity to patients and coworkers.
DON’T terminate any employee who refuses a flu shot without engaging in the interactive process if they are objecting for health or religious reasons. Further, any disciplinary measures should be uniformly implemented in the case of employees in violation of the policy. Employers may also want to consider progressive discipline for first-time offenders, e.g., issuing a warning letter for an initial failure to show proof of a flu shot or failure to wear a facemask.
DO ensure that any policy implemented is enforced uniformly. Require proof that employees have received a flu shot. In the case of objectors, seek a waiver that the employee is unable or objects to vaccination and then engage in the interactive process to agree upon a reasonable accommodation.
DO consider making flu shots available to employees on-site to maximize compliance with any flu shot policy.
DON’T implement a policy without contacting your state’s Department of Health or any other related agencies. These agencies can provide guidance on the manner in which vaccine policies should be implemented for various categories of employers or regarding possible accommodations for objecting employees.

Firing Employees Who Don’t Get Flu Shots: What Risks Do Hospitals Face?

As hospitals continue to see an onslaught of flu patients, they also face challenges to flu vaccination policies designed to reduce the spread of flu to patients and fellow employees. Hospitals are understandably concerned with protecting patients, visitors and employees from contracting the flu and the potentially serious consequences to the health of elderly and infant patients. However, protecting patients against flu can create legal liability when employees are disciplined, discharged or suffer other adverse action because they do not get a flu shot.

Employment Considerations for Flu Vaccination Policies—The National Labor Relations Act

What limitations exist on a hospital’s ability to create and implement a flu/other vaccination policy? Under the National Labor Relations Act, a flu vaccination policy is a mandatory subject of bargaining. This means that unionized hospitals cannot unilaterally implement such a policy without first giving the union notice of the intended policy and bargain over the policy if the union requests to do so.

A hospital does not have to bargain if the union has “clearly and unmistakably” waived its right to bargain over the issue. A waiver is typically found in the “Management Rights” clause, which was the case in a recent National Labor Relations Board (NLRB; the Board) decision, Virginia Mason Medical Center, 358 NLRB No. 64 (2012), where the Board found a clear and unmistakable waiver in the Management Rights clause. That clause stated, in relevant part, that the Medical Center has the right to “operate and manage the Hospital, including but not limited to the right to require standards of performance and…to direct the nurses…to determine the materials and equipment to be used; to implement improved operational methods and procedures…to discipline, demote or discharge nurses for just cause…and to promulgate rules, regulations and personnel policies….”

The Union representing the Medical Center’s registered nurses filed an unfair labor practice charge with the Board and a hearing was held before an NLRB Administrative Law Judge (ALJ). The ALJ ruled, and the Board agreed, that the Management Rights clause did not specifically mention wearing facemasks (which the flu policy required in certain areas for non-immunized nurses), but it did “specifically allow the Hospital to unilaterally ‘direct the nurses’ and ‘determine the materials and equipment to be used’ [as well as] implement improved operational methods and procedure.’” The ALJ noted that the Hospital had several infection control policies that required nurses to wear masks under various circumstances, and found that requiring non-immunized nurses to wear masks was within the Hospital’s authority to “determine the materials and equipment to be used [and] implement improved operational methods and procedures.”

With properly crafted language in a Management Rights clause or elsewhere in a collective bargaining agreement, a unionized hospital has the right to unilaterally implement a new flu vaccination policy or modify an existing policy.

Employment Considerations for Flu Vaccination Policies—Disability and Religious Discrimination

Hospitals, of course, have reached different decisions on how to balance the interests of patients and employees. As such, policies vary in the flexibility given to employees regarding non-vaccination and the resulting consequences:

Vaccination encouraged but not mandated
Vaccination mandated with exemptions for medical contraindication, religious beliefs (discipline/other adverse consequences for non-exempted employees)
Vaccination mandated and masking required for medical contraindication, religious beliefs (discipline/other adverse consequences for failure to be vaccinated or wear mask, as applicable)
Vaccination required (discipline/other adverse consequences for non-compliance)

Flu vaccination policies also differ regarding applicability. Some policies apply only to employees who come into direct contact with patients. At the other end of the continuum, the policy applies to all employees, independent contractors, students, interns, vendors and others who provide services inside the hospital.

Union and non-union hospitals should consider the potential for discrimination claims based on a flu vaccination policy that requires any group of employees to get a flu shot or face adverse consequences (such as discharge) if they fail to do so for any reason. The Equal Employment Opportunity Commission (EEOC) would likely find such a policy to be unlawful. The EEOC has taken the position in its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” guidance that

“[a]n employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).”

www.eeoc.gov/facts/pandemic_flu.html – 48k – 2009-10-21

Recently, a federal district court in Ohio refused to dismiss a complaint by a registered nurse alleging religious discrimination because she was fired for refusing to comply with the hospital’s mandatory flu vaccination policy. Chenzira v. Cincinnati Children’s Medical Center, S.D. Ohio, No. 1:11-cv-00917 (12/27/12). The employee’s refusal was based on her “religious beliefs” in veganism. The court rejected the hospital’s argument that her veganism was merely a “social philosophy or dietary preference.” According to the court, it was plausible the employee could show that she held her belief in veganism with the same sincerity as traditional religious beliefs. However, this case is far from over. The court noted that its ruling on the motion to dismiss “in no way addresses what it anticipates as the hospital’s justification for its termination of the employee — the safety of patients at Children’s Hospital.”

Not all refusals to get a flu shot are based on medical or religious reasons. A hospital in northern Indiana fired seven employees who refused to get flu shots. One oncology nurse who was fired said it was “a personal thing.” The nurse said she gets other vaccinations but it should be her choice whether she gets the flu vaccine. She said she opposes “the injustice of being forced to put something in [her] body.” Absent a violation of applicable state law, it is doubtful this employee would have a claim against the hospital for her termination.

Considerations in Creating a Flu Vaccination Policy

Current CDC guidelines do not require hospitals to mandate flu vaccination in any form; the CDC recommends active encouragement of employees to get a flu shot. However, some hospitals believe it is appropriate to do more to try to protect vulnerable patients from catching the flu in the hospital and then suffering severe health consequences. These hospitals mandate that at least some groups of employees must be vaccinated. ”

Terminating or taking other adverse action against an employee who cannot get the vaccine because of a disability (as defined in the Americans with Disabilities Act and/or applicable state law) exposes a hospital to meaningful risk of a discrimination lawsuit. The same is true for employees who raise a “religious objection.”

Hospitals should evaluate such refusals on a case-by-case basis and explore possible reasonable accommodations of the employees’ refusal to get vaccinated, and the policy should so inform employees. Possible reasonable accommodations could be exempting the employee from the policy entirely, transferring the employee to another position temporarily (until the flu threat ends as determined by local health officials) or permitting the employee to wear a mask when in proximity to patients and coworkers. From my perspective as a former hospital board chairman, this approach presents a balancing of the hospital’s interest in protecting patients from flu exposure while protecting the legal rights of certain employees who decline to get vaccinated. In the final analysis, many hospitals believe that risk of harm to patients may trump an individual’s right to refuse when flu epidemics are declared.

Board Reverses 34-year Rule and Requires Employers to Give Unions Actual Witness Statements

Since 1978, the National Labor Relations Board has allowed employers to refuse to provide unions with copies of witness statements obtained during an investigation of employee misconduct. In Anheuser-Busch, 237 NLRB 982 (1978), the Board agreed with a U.S. Supreme Court ruling that disclosure of witness statements to a union would create a risk of coercion and intimidation and could well cause witnesses to be reluctant to provide truthful statements or participate in Board investigations. Recognizing that a union may have a legitimate need for information related to the investigation, the Board required employers to provide summaries of the witness statements to the union. This requirement balanced the confidentiality rights of the employees providing the statements with the union’s interest in relevant information.

The Board has rejected this “bright-line” rule and replaced it with a “balancing test” to decide when and under what circumstances an employer must give the union actual witness statements. Under this new approach, articulated in American Baptist Homes of the West, d/b/a Piedmont Gardens, 359 NLRB No. 46 (2012), employers must produce witness statements to a union upon request unless the employer can prove its confidentiality interest outweighs the union’s need for the information.

In Piedmont Gardens, the employer operated a continuing care facility that offered independent living, assisted living and skilled nursing care level options to its residents. In June 2011, a charge nurse informed the Human Resources Director that she had seen two certified nursing assistants sleeping on the job. The HR Director asked the charge nurse to prepare a written statement and assured her it would be kept confidential. Another charge nurse who witnessed the sleeping employees prepared a written statement after learning that her fellow charge nurse had done so, but without an assurance of confidentiality. Based on the witness statements, one of the sleeping employees was terminated.

The union requested all written statements relied on in making the termination decision and the names and job titles of everyone who was involved in the investigation. The employer refused to provide any of the requested information, but it offered to work with the union to reach an “accommodation to disclosure.” No information was provided to the union, and it filed an unfair labor practice charge.

The Board majority held that the employer was required to provide the witnesses’ names and job titles, along with the witness statement from the charge nurse who was not assured of confidentiality. However, the Board stated it would not apply its new standard in this case because it would cause a “manifest injustice” to the employer who was guided by the Anheuser-Busch standard. Thus, the employer did not have to provide the witness statements of employees who were told their statements would remain confidential.

The discarded Anheuser-Busch standard provided employers and unions certainty about their respective rights and obligations regarding disclosure of witness statements given during an employer’s investigation of possible wrongdoing. The new standard eviscerates certainty and creates a standard that is vague, subjective and outcomes will be unpredictable because each situation will be based on its unique and nuanced facts. As noted by dissenting Board Member Hayes, the new standard “will often put human relations officials…in the position of making a legal assessment whether their employer’s confidentiality interests are legitimate, substantial, and superior to the interest of the union requesting witness statements.”

This ruling follows another recent Board decision that ruled employers can no longer, as a matter of human resource practice or policy, require employees to maintain confidentiality of investigatory interviews. Banner Health System, d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (2012). Unionized employers now must consider when and how they can give confidentiality assurances to employees who provide witness statements and under what parameters the employer’s confidentiality interests are more important than the union’s right to obtain witness statements. Employers should analyze their investigatory practices and policies in light of these two rulings.

The likely real-world implications for unionized employers is that unions will demand witness statements with regularity and, if the employer refuses, file unfair labor practice charges. More frequent involvement of legal counsel may well be necessary because of the vague and fact-specific balancing act employers are now required to make.

Facebook Firings – An Old Approach to the New Issue of the Virtual Water Cooler

The National Labor Relations Board (“Board”) issued its second decision on a firing over Facebook posts on Wednesday, December 19, 2012. The Board, avowing its commitment to the idea that speech on a personal, non-work-related social media outlet should be treated the same way as discussions on work premises, ordered a non-profit organization to reinstate five employees who were fired over Facebook posts. In a 3-1 decision in Hispanics United of Buffalo, Inc., 359 NLRB No. 37, 12/14/12 [released 12/19/12], the Board affirmed the administrative law judge’s ruling that the employer violated the National Labor Relations Act (“NLRA”) when it terminated five employees for posting Facebook comments in response to a co-worker’s criticism of their job performance.

While noting that at issue was a novel mode of employee communication, the Board agreed with the ALJ that the appropriate analytical framework for resolving the discharge dispute had long been settled under Meyers Industries and its progeny.[1] Under the Meyers Industries analysis, an employee’s discipline or discharge is unlawful if it is motivated by an employee’s concerted, NLRA-protected activity and if the employer knows the activity was concerted. The underlying ALJ ruling in Ortiz v. Hispanics United of Buffalo, Inc., Case No. 3-CA-27872 (NLRB Sept. 2, 2011) issued a landmark decision when it marked the first time a Board judge had ruled on a social media-related employment decision.

Member Brian E. Hayes, the sole dissenter and Republican board member, disagreed with the majority view that the employees’ comments were made for mutual aid and protection. However, writing shortly before his term on the board ended Dec. 16, he agreed that the Meyers Industries framework was the right analysis to use for evaluating whether the activity on Facebook is protected and concerted. In light of this decision, it is clear that concerted activity is protected whether spoken in the workplace or via the virtual water cooler. Even with the difference in type and style of communication used in social media outlets, the Board is not adopting any new rules or framework within which to evaluate the speech.

Additionally, this decision serves as a warning to employers who have been using their policies to justify adverse employment actions when faced with potentially protected activity. The Board majority in this case rejected the employer’s defense that these five employees had violated its zero-tolerance policy on bullying and harassment when they disagreed with another co-worker that the company was not doing enough to help its clients. The Board held that the employees were taking a first step toward group action to defend themselves against another co-worker’s accusations made to management and hence, was protected, concerted activity. Employers who seek to discipline an employee for comments he or she makes on social media sources must therefore not merely rely on their policy, but they must also ensure that their policy is valid in that, among other things, it does not discourage protected, concerted activity.

[1] Meyers Industries, 268 NLRB 493 (1983), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).

New Year, New Laws for California Employers – Deposition Limits, San Francisco Ordinances and Meal Periods

In the final part of our series, “New Year, New Laws for California Employers,” we take a look at new deposition limits, San Francisco ordinances and meal periods. Prepared by Mark Terman, partner in the Los Angeles office, this series looks at some of the significant new regulations becoming law in 2013 affecting private employers doing business in California.

Deposition Limits

AB 1875 limits a deposition of any person to seven hours of total testimony, similar to the requirement in federal courts. Excepted from this limitation are depositions in employment and complex cases, and of expert witnesses.

San Francisco City Ordinances

For an employer who directly or indirectly employs or exercises control over an employee’s wages, hours and working conditions in the city of San Francisco, Minimum Wage, Health Care Security (HCS) and Paid Sick Leave (PSL) Ordinances benefit those employees (http://sfgsa.org/index.aspx?page=430).

For 2013, hourly minimum wage for employees in San Francisco increases to $10.55 from $10.22, while the statewide minimum wage outside San Francisco remains at $8. The required 2013 “spend per employee,” under the HCS Ordinance for employers with 100 or more employees increases to $2.33 from $2.20 per hour. For employers of 20-99 employees, spend increases to $1.55 from $1.46. Exempt from the HCS Ordinance are employers with 19 or fewer employees, managers and supervisors salaried at $86,593 or more and nonprofit employers of less than 50 employees. So far, there is no change in the PSL Ordinance.

Meal Periods

Of the many court decisions this year affecting employers, perhaps none impact as many employers as the California Supreme Court’s meal period directive in Brinker Restaurant Corp. v. Superior Court.

Before Brinker, California employers were relegated to policing and disciplining employees to ensure they took at least one, 30-minute nonworking meal periods and, if employers did not, they stood to risk class-action and single-plaintiff litigation over regular wages, overtime wages, wage premium (an extra hour of pay for each meal period lost), interest and attorneys’ fees.

By contrast, Brinker ruled that an employer’s obligation is to relieve its employees of all duty, with employees then at liberty to use the meal period for whatever purpose, but the employer need not ensure that no work is done during the meal period. Likewise, an employee may not capitalize on premium pay by intentionally working through provided meal periods, and an employer may not “impede or discourage” a full, uninterrupted meal period. Finally, the court held that an employer must provide a reasonable opportunity to take meal periods of at least 30 uninterrupted minutes, within the proper time frame, and relieve employees of all duties.

While this case is welcome news, employee claims may still surface. For example, some employees may contend that they were impeded or discouraged from taking lunch or leaving their work area, thus triggering premium pay. Some employees may habitually decline to take a meal period to try to consume “regular rate” working time midday and assure that some overtime is worked, forcing the employer to pay overtime rates for those hours. Consequently, some employers may still prefer to require by their own policies that meal periods are actually taken, rather than made available.

Links to the other posts from this series are below.

New Year, New Laws for California Employers – Employer Access to Social Media

New Year, New Laws for California Employers – Religious Dress and Grooming Protected and Breastfeeding Further Protected

New Year, New Laws for California Employers – Added Whistle-blower Protections, With Whom Will the EDD Share Employer Reports and Contracts with Commission Employees

New Year, New Laws for California Employers – Right to Inspect and Receive Employment Records and Right to Inspect and Copy Wage Records

Next in our series, “New Year, New Laws for California Employers,” we take a look at the rights of the right to inspect and receive employment records and the right to inspect and copy wage records. Prepared by Mark Terman, partner in the Los Angeles office, this series looks at some of the significant new regulations becoming law in 2013 affecting private employers doing business in California.

Right to Inspect and Receive Employment Records

Under existing law, an employee has the right to inspect the personnel records relating to the employee’s performance or to any grievance concerning the employee, and has a right to copies of documents the employee has signed. AB 2674 requires employers to provide a current or former employee—or the employee’s representative authorized by the employee in writing—an opportunity to inspect and receive a copy of those records at reasonable intervals and at reasonable times. Deliverance of these papers is not to exceed 30 days of a written request, except during the pendency of a lawsuit filed by the employee or former employer relating to a personnel matter.

Employers are also required to create a records request form, but information requestors are not required to use it. Current and former employees can bring legal action to recover a $750 penalty from the employer and their attorney’s fees, and obtain court orders compelling compliance.

This new law also adds some employer protections. Employers are not required to comply with more than 50 requests from a representative in one calendar month, may redact names of non-supervisory employees before producing records, and may charge no more than the actual cost of reproduction and, if mailed, postage. The new law generally does not apply to employees covered by a valid collective bargaining agreement. And it does not apply to: “(1) Records relating to the investigation of a possible criminal offense. (2) Letters of reference. (3) Ratings, reports or records that were: (A) Obtained prior to the employee’s employment; (B) Prepared by identifiable examination committee members; (C) Obtained in connection with a promotional examination.”

Right to Inspect and Copy Wage Records

Labor Code Sec. 226(a) continues to require employers to provide an itemized statement or paystub with timely wage payment that states gross wages, total hours worked and rates of pay for the hours of a nonexempt employee, all deductions, net wages earned, payroll period dates and other mandatory information. (See, paystub requirements: http://leginfo.legislature.ca.gov/faces/codes.xhtml, click on “LAB” and “226”).

Employers are required to keep a copy of these wage records for at least three years at the place of employment, or at a central location within California. Current or former employees may inspect or copy these records upon 21 days written or oral notice. An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with its Labor Code Sec. 226(a) paystub requirements is entitled to recover the greater of all actual damages or a specified sum, not exceeding an aggregate penalty of $4,000, and is entitled to an award of costs and reasonable attorney’s fees.

AB 2674 clarifies that the term “copy,” for purposes of wage record retention, includes a duplicate of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the information existing law requires to be included in the itemized statement.

SB 1255 makes it easier to pursue penalties against employers by presuming injury when wage statements do not have all required information. Under the new law, an employee is deemed to suffer injury if the employer fails to provide:

1. A wage statement; or

2. Accurate and complete information required (the employee cannot promptly and easily determine from the wage statement alone the amount of the gross or net wages paid to the employee during the pay period or other specified information, the deductions the employer made from the gross wages to determine the net wages paid to the employee during the pay period, the name and address of the employer or legal entity that secured the services of the employer and other specified information).

Links to the other posts from this series are below.

New Year, New Laws for California Employers – Employer Access to Social Media

New Year, New Laws for California Employers – Religious Dress and Grooming Protected and Breastfeeding Further Protected

New Year, New Laws for California Employers – Added Whistle-blower Protections, With Whom Will the EDD Share Employer Reports and Contracts with Commission Employees