An Outbreak of Flu-Related Legal IssuesSue Reisinger Corporate Counsel
01-18-2013
It’s too bad we can’t just outlaw the flu. But since we can’t, the next best thing might be to ask the legal department what can be done about it.
Labor and employment lawyer Kathleen Caminiti said there are some actions that employers can take. When it comes to the spread of influenza, Caminiti added, “business and legal issues intersect.”
For example, any solutions might help businesses that are reeling from the loss of productivity and costs of healthcare as employees fall like stunned flies to during this steadily worsening flu season. A study from the national Centers for Disease Control and Prevention says annual influenza epidemics result in about 3.1 million hospital days and $10.4 billion in direct medical costs annually.
One thing employers can do, according to Caminiti, a partner in the New Jersey office of Fisher & Phillips, is have the workers get flu shots, which either prevent or lessen the illness.
“Generally, you can require the shots in certain industries, such as health industries like nursing homes or in pre-schools,” she said.
But public places like restaurants fall into a grey area. And most businesses need to go through a risk assessment before mandating the shots, Caminiti said.
“Employers can avoid the legal implications of mandating the shot by simply offering to pay for it or offering, say, a $10 Starbucks gift card to each worker who gets a shot,” she suggested.
Business should be aware that an employee may be allergic to the shot or have religious beliefs against getting one. “In that case, you need to engage in an individualized interactive process,” Caminiti says. “You can’t have a blanket fire-or-furlough policy for those who refuse.”
She suggested trying to accommodate these employees. In the case of an allergy, the employer may be able to pay for an alternative vaccine that doesn’t contain the allergen.
Another helpful move employers may want to consider is expanding time-off policies.
Caminiti said, “A lot of employers are asking me if can they can modify their policies to give a ‘free’ day to encourage someone to stay home if he has used all his sick days, or is saving them, or just doesn’t have leave. They’d rather pay the extra day’s pay than have someone who’s sick come in and infect everyone.”
An estimated 36 percent of American workers have no kind of paid leave, including sick days.
Caminiti said as long as any change in policy is made uniformly for all employees, there should be no legal issue.
She also suggested that companies check out other public resources available at flu.org and cdc.gov/features/fluactivity.
Besides labor issues, the flu bug has infected other areas of the law.
A recent article in the Huffington Post said this year’s epidemic has led to more calls for states to mandate paid sick leave so that ill workers can and will stay home.
A federal bill has failed to pass in Congress in the past, so advocates are turning to the states. So far, Connecticut has passed a law mandating 40 hours of paid sick leave, according to HuffPo.
Another flu-related legal issue revolves around where one receives the shot, such as in a pharmacy as opposed to a doctor’s office.
David Ivill, a health partner at McDermott Will & Emery in New York, said, “It wasn't that long ago when having minor medical procedures performed in a pharmacy setting would have seemed like dining out inside a supermarket."
But the idea has evolved, he said, due to changes in the legal landscape and the need for more convenient and efficient ways of delivering healthcare.
The CDC found that some 20 percent of those who received a flu vaccination during the 2010-2011 flu season got it at a retail pharmacy. And, under the Affordable Care Act, most insurers can no longer charge co-payments for preventive care such as flu vaccines, according to Ivill.
He noted that not all states allow pharmacies to give the shots, but most do. Ivill said he works with individual pharmacies as well as with general counsel of pharmacy chains on state regulations and other legal issues.
Some pharmacies, Ivill said, contract with or license space to physician groups or nurse practitioners to deliver the shots. In others, the pharmacist may do it. Under the contract/license model, the group—not the pharmacy—would be liable for any legal problem or malpractice claim related to the shots.
Critics a few years ago questioned the idea of providing medical help in pharmacies or walk-in clinics, Ivill said.
“But what we’re seeing is there are no objections to these models now,” he added. “When you see the flu occurring as an epidemic, these models become increasingly important."
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