Employers seek dose of advice on flu shot problems

By Péralte C. Paul and Shelia M. Poole


The Atlanta Journal-Constitution

During the next few weeks, workers’ e-mail boxes will be stuffed with annual reminders about the upcoming flu season.

For some employees, the notices also will inform them about their employer’s plans to offer flu shots for free or reduced cost.

But the H1N1 virus, or swine flu, is posing a problem for corporate human resources departments: Employers are trying to learn what their rights are, and their workers are wondering whether they can be forced to take the vaccine to remain employed.

Since Georgia is a right-to-work state, employers can mandate their employees take the swine flu shot — with a few exceptions such as religious beliefs, union contracts and allergies to vaccines — as a condition of continued employment, said Doug H. Duerr, a partner at Elarbee Thompson, Sapp & Wilson in Atlanta.

“As a general rule, what employers control is when you’re at work, you need to perform up to certain standards,” Duerr said, adding that employers were similarly concerned about vaccines and possibly making them mandatory after the 2001 anthrax scares. “But vaccines are different.”

He and other Atlanta-area employment law attorneys are responding to a steady flow of calls from clients looking to create “what-if” plans for that particular strain, which the World Health Organization designated a pandemic in June.

Among employer’s key questions:

● Can we mandate employees take the seasonal or swine flu vaccine?

● Should we segregate sick employees from healthy people?

● Can we require a doctor’s note before an employee returns?

● Should we make temporary adjustments to our sick leave policies to encourage employees to stay home?

The questions underscore just how concerned employers are about swine flu’s potential impact on business, said Howard Mavity, a labor lawyer at the firm Fisher & Phillips.

They also highlight the delicate balancing act employers will face in managing their needs while handling their employees’ health privacy concerns.

Employers also have to be mindful of the Americans With Disabilities Act, said Matt Clarke, a partner in the litigation group at Smith, Gambrell & Russell.

“While the act does not require employers to allow contagious employees to continue working, it does forbid employers, in some circumstances, from firing employees because of their illness or from discriminating against employees who were ill but have recovered,” Clarke said. “The ADA also requires the employer to take reasonable steps to prevent any discrimination by co-workers.”

Lawyers at Troutman Sanders created a swine flu Web site in response to questions and are hosting seminars over the Web with clients to advise them.

Other firms are helping clients’ HR departments develop their contingency plans.

Mavity has conducted between 15 and 20 seminars in person and over the Web — including one earlier this month with 900 participants — on how swine flu may affect the workplace.

Whatever plans employers develop will have to comply with state and federal laws and not appear so heavy-handed as to ruin employee morale, lawyers say.

Mavity’s advice: Follow federal guidelines closely, have a backup plan and be flexible.

“In this case, as long as one follows the federal guidelines they are going to be OK legally,” Mavity said. “The key will also be to make plans to fit the real world. One of the clear messages of the feds is to stay home if you’re sick.”

Employers have reason for worry.

Just a mild pandemic affecting 1.4 million people could cost the global economy $330 billion, according to a recent study by the Brookings Institution, a Washington-based nonprofit public-policy group.

A worst-case scenario with 14.2 million fatalities pegs the total global economic loss at $4.4 trillion.

Many of Atlanta’s largest employers that offer flu vaccines to their workers each year, including Delta Air Lines, SunTrust Banks and Home Depot, say they are monitoring what the U.S. Centers for Disease Control and Prevention says about swine flu and will make adjustments accordingly, such as extending paid sick time.

One problem with making definitive plans regarding swine flu policy is it’s not clear how widespread the strain will be, some employers say.

“I can’t speculate as to what we’ll do with that yet because the availability of the H1N1 vaccine as well as understanding how broadly that vaccine has to be disseminated is still not clear,” said Stephen Holmes, a Home Depot spokesman.

But none of the major employers is considering making the swine flu vaccine mandatory. Several have said they will offer it, if warranted, along with the regular flu shots on a voluntary basis.

Delta, the world’s largest airline, has 19 on-site locations nationwide for employees to get vaccinated against the regular flu strain. Those sites also will offer H1N1, if necessary, said Anthony Black, a Delta spokesman. Getting either vaccine will be up to employees.

That’s probably the best strategy, said Dan Beale, a partner at McKenna Long & Aldridge.

“I’m not seeing employers coming to me and asking, ‘Can we mandate this?’ ” Beale said. “And I don’t think most would mandate it. That would probably create employee morale issues and create more issues than they’re worth.”