Flu Season Is Approaching, Should You Require Employees to Get A Flu Shot?

In light of the COVID-19 pandemic, getting a flu shot this year is even more important than it has been in the past. (If you don’t believe me, talk to the CDC.) 

Does this mean that employers should require all their employees to get flu shots? The short answer is NO. 

As of this moment, there is no federal or state law (in Louisiana that is) requiring all employers to compel all their employees be vaccinated for the flu. In fact, both the ADA (for persons with disabilities) and Title VII (for sincerely held religious beliefs) provide exceptions that would allow an employee to refuse to be vaccinated. Rather than require vaccinations, the EEOC has stated that “ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” (Guidance) This Guidance was initially issue by the EEOC in 2009 and it was recently re-issued in March of this year. 

This means that although most employers can strongly recommend that employees be vaccinated for the flu, they would also be required to go through the accommodation analysis required by the ADA and Title VII if an employee asked to be excused from the vaccination as an accommodation.  

Healthcare Workers: While the reasonableness of a healthcare worker’s request to not be vaccinated would be held to higher scrutiny, especially in the case of one who provides direct patient care, the general analysis under the ADA and Title VII will be the same. The existence of a state or local law or administrative guidance recommending vaccinations for healthcare workers and the worker’s direct contact with patients will play into the reasonableness, or lack thereof, of the employees request to not be vaccinated. 

Employers should ensure that their requests, or mandates as the case may be, that employees be vaccinated are based upon the best available guidance: refer to the CDC and EEOC publications above, and the worker’s specific job duties. Whatever policy you land on needs to be clearly communicated to your employees and your supervisors must be trained to respond to employee requests to be exempt from vaccinations. (This should generally entail spotting the issue and immediately reporting it to HR for the appropriate analysis.) And, in the context of all of this communication and analysis, the employee’s medical information should be kept confidential.

Does State or Federal Law Require Me to Allow Employees Time Off of Work to Vote?

For most private employers, the answer is NO, there is no state or federal law requiring you to allow employees to miss work in order to vote in state or federal elections. 

vote clipart - Clip Art Library

Louisiana does have a state statute that generally prohibits employers with twenty or more employees from interfering with an employee’s ability to participate in politics. Specifically, LSA-R.S. 23:961 states that: 

Except as otherwise provided in R.S. 23:962, no employer having regularly in his employ twenty or more employees shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics, or from becoming a candidate for public office. No such employer shall adopt or enforce any rule, regulation, or policy which will control, direct, or tend to control or direct the political activities or affiliations of his employees, nor coerce or influence, or attempt to coerce or influence any of his employees by means of threats of discharge or of loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character. 

Any individual person violating the provisions of this Section shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than six months, or both; and any firm, corporation or association violating the provisions of this Section shall be fined not less than five hundred dollars nor more than two thousand dollars. 

One “clever” employer recently asked if it could allow only those employees that it believed to belong to a certain political party off of work in order to vote next Tuesday. We explained that doing so could very possibly constitute a violation of LSA-R.S. 23: 962, in addition to creating an extremely bad optic for the business.

The bottom line: If early voting numbers are any indication, this will probably be one of the largest voter turn outs in modern history. Although employers have no legal obligation to allow employees off of work in order to vote, realistically many employees are going to miss some work to do so. It would be a good idea to decide how you are going to respond to those situations and to inform your managers of the company voting policy. You do not want to find yourself in a situation where workers are allowed time off to vote depending upon their perceived political affiliation.

The CDC Re-Defines “Close Contact”

Under the old Guidance, Close Contact was someone who had been within 6 feet of a COVID-19 positive person for 15 minutes or more.

Under the new Guidance, Close Contact is “Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”

On Wednesday, the CDC issued a new Guidance that expands the definition of “close contact” for purposes of exposure to COVID-19.

As you probably recall, the CDC has generally recommended that anyone having Close Contact with a COVID-19 positive individual stay home for fourteen (14) days after their last contact with the COVID-19 positive person.

I do not know what practical impact this new Guidance will have on the average person going about their daily business; I suspect not much. However, this expansion may significantly impact the application of Act 336. You will recall from my prior updates that Act 336 limits liability for civil damages for injury or death resulting from exposure to COVID-19: “…unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state or local agency which governs the business operations and the injury or death was caused by the person’s, government’s, or political subdivision’s gross negligence or wanton or reckless misconduct.”

Although we don’t yet have any reported cases interpreting this aspect of the Act, it is almost certain that the new CDC Guidance will constitute a “procedure established by a federal agency” with which we must comply in order to enjoy the protections of Act 336. As you can see, this Guidance will significantly expand the scope of employees that you send home to self-quarantine for 14 days after exposure to COVID-19.

The CDC has not established procedures for tracking an employees’ cumulative exposure to COVID-19 over a 24-hour period. As an HR professional, I would alter both my written policies and my practices to incorporate this new. Showing that you made a good faith effort to comply with the Guidance may be a critical piece of evidence one day.