Flu season is upon us, and many health care institutions have required employees to be vaccinated against the virus.

In fact, Minnesota-based Essentia Health last month reportedly fired about 50 employees for refusing to comply with the hospital system's mandatory flu vaccine policy.

In health care settings, where germs are rampant and high immunity is not, there is strong medical policy in favor of vaccinating workers, said employment law experts who provide guidance to general counsel at health care companies about implementing a mandatory flu shot policy.

According to the U.S. Centers for Disease Control and Prevention, 18 states statutorily require flu shots for health care workers. These laws may vary, however, based on the hospital type and other factors, so general counsel should explore whether any laws govern the matter in their states, said Albert Randall, a labor lawyer at Franklin & Prokopik in Maryland.

Some of those laws may even allow for vaccination exemptions, according to the CDC. But even if they don't, exceptions must always be considered to ensure that policies do not run afoul of state and federal disability and anti-discrimination laws, the legal experts said.

Specifically, the federal Americans with Disabilities Act and Title VII of the Civil Rights Act prohibit discrimination based on disability and religious beliefs, respectively.

In such circumstances, the employer would have to engage in an “interactive process” in order to determine if there were a reasonable accommodation that is not unduly burdensome to the employer, said Richard Cohen, a New York-based attorney at the firm FisherBroyles.

“The cases where this comes up are cases where someone says, 'I have a religious exemption,' and the employer simply fires them,” he said.

But that wasn't the case at Essentia, where employees reportedly were told in October that they had until Nov. 20 to receive a flu shot or be fired. The policy also applied to students who train, vendors who operate and volunteers who donate time at any of Essentia's 15 hospitals and 75 clinics in Minnesota, Idaho, North Dakota and Wisconsin. The company excluded from the policy employees who obtained religious or medical exemptions. Some 99.5 percent of the 13,900 eligible employees required to get a flu shot either complied or asserted an exemption, the hospital reported.

“I don't see any proscription against the private employer terminating them,” Cohen said, “They seemed to have covered the bases by covering those who would object on medical or Title VII grounds.”

In addition to ensuring the existence of accommodations, Franklin & Prokopik's Randall suggested two other pointers for GCs considering implementation of a mandatory flu shot policy:

♦ Make sure to work with human resources representatives to ensure that the company's policy regarding exemptions in such circumstances outlines the steps employees must take if they are going to make such a claim; and

♦ Be sure to provide ample education to employees about the practical risks of receiving a flu vaccination. Randall said he could foresee a situation in which an employee injured by a flu shot could bring a negligence claim, alleging that the employer did not notify him or her of the risks associated with the required vaccination.