What is an Employer’s Legal Exposure from Flu Shots

It’s that time again.  Flu shots are being offered everywhere to you look, from grocery stores to schools.  Many employers also join in.  However, in attempting to encourage flu shots, or at least make it more convenient for employees to get them, employers may be exposing themselves to unwanted liability.  The following are some of the ways that can happen.    

First, there can be workers’ compensation liability under certain circumstances.   When an employer requires an inoculation, a resulting injury is likely compensable.  Compensability is less clear when the inoculation is voluntary.  Generally, whether an injury is work-related will depend on several factors, including whether the activity benefited the employer, was within the terms, conditions or customs of the employment, served both a business and personal purpose,  was employer or employee created, and whether it occurred on the  employer’s premises.  In the case of a flu shot, the Board might look at whether the employer “strongly urged” the employee to have the shot or whether it was truly voluntary, whether the employer provided the shot at no or reduced cost, whether the employer benefitted from providing the shots in terms of, for instance, reduced absenteeism from illness or discounts on insurance rates, and whether the shot was made available to non-employees and during non-work time.  

Second, a person suffering from the flu or effects of a flu shot could have a covered disability under the ADA/MHRA if the condition is severe enough to meet the definition of disability under those laws. 

Third, an employee who has the flu or is ill as a result of a flu shot may be entitled to leave under various federal and/or state statutes.  State and federal FMLA allow an employee to take unpaid leave time for the employee’s own serious health condition.  Although the federal FMLA regulations state that “[o]rdinarily, unless complications arise, the common cold, the flu, . . . etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave”, this might be different if complications develop.  Further, even if the employee’s flu may not amount to a serious health condition, an employee may be entitled to FMLA leave to care for a covered relative.  Finally, Maine’s Family Sick Leave law (which is distinct from the state FMLA) may also apply; this law requires all employers of a certain size to allow paid leave to be taken “for the care of an immediate family member who is ill”.  The term “ill” is not defined in the law but could possibly include an individual with the flu or other seasonal illness. 

Fourth, accommodation of religious beliefs could be an issue where an employer requires a flu shot but an employee objects to it on religious grounds.  The first step is to ensure that the employee meets the requirements under the law for coverage of those beliefs.  That means, among other things, that the belief must be based on religion and not simply on a personal opinion as to vaccines.  Assuming that threshold is met, an employer must engage in the reasonable accommodation dialog.   Some potential forms of accommodation could be allowing the employee to wear a mask or reassigning the employee.  These are very fact specific and sensitive determinations and need to be assessed on a case by case basis so as to avoid any potential discrimination or retaliation claim. 

As with many other issues, this warning is not meant to discourage good deeds by employers, with flu shots or otherwise, but simply to remind that risk should be assessed.

 

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell