United States: Combating The Flu: Retail Sector Employers Among Most Prone To Workplace Disruptions

Last Updated: October 9 2019
Article by Paul E. Goatley and Edward F. Harold

In most workplaces across the country, a perfect attendance record will be met with applause. Employees who “tough it out” and sneeze their way through the workday are congratulated, while those who stay at home to nurse an illness might be viewed as “slackers” and a burden to the company. This institutionalized mentality, however, can actually do more harm than good.  

According to the Harvard Business Review, “presenteeism” – the problem of employees being on the job but, because of illness or other medical conditions, not fully functioning – can cut individual productivity by one-third or more. In fact, presenteeism can be much costlier to employers than absenteeism. It’s estimated that absent workers cost employers around $150 billion annually, but those who come to work and are not fully productive, can cost employers roughly 10 times that amount. 

A recent study conducted by researchers at Ball State University indicates this concern is elevated during periods of sustained economic growth like we’re experiencing now. The study found that a 1% increase in the employment rate correlates with increases in the number of influenza-related doctor visits by roughly 16%.

These concerns are particularly acute with flu season around the corner. Moreover, the retail sector is particularly susceptible to the crippling impact of a flu outbreak due to the high degree of interpersonal contact among employees and customers. For these reasons, retail employers should start devising plans to maintain productivity and keep the workplace flu-free. What are some factors you should be considering as part of this effort?

Can My Company Make Flu Vaccines Mandatory?

The CDC estimates that when employers require flu vaccinations, 85% of workers get one. When no such policy is in place, that number drops to 43%. While the numbers suggest that mandatory vaccination policies are the best line of defense against the flu, employers are encouraged to exercise caution when implementing such policies.

While it is permissible in most states for require your workforce to get vaccinated in order to stave off a flu outbreak before it even starts, each state treats the issue differently. In Ohio, for example, a bill is currently pending that would effectively bar employers from mandating that employees obtain vaccinations as a condition of employment.

In other states, certain employees (mainly healthcare workers) are required to get vaccinated. While such a requirement does not exist for employees in the retail sector, this does not mean retail employers are precluded from instituting a mandatory vaccination policy – absent a state-specific prohibition against such policies. 

Besides checking to determine whether your state allows mandatory vaccination policies (check with counsel if you’re unsure), here are some other factors to consider to ensure proper flexibility and to allow for exceptions under certain circumstances.

Requests For Accommodation

Before implementing a mandatory vaccination policy, create a process by which employees can request accommodations. Employees need to know where to turn if they need to ask for an accommodation. It is also advisable to have forms for employees to fill out to request a waiver from any vaccination requirement.

When Must An Accommodation Be Granted?

You have an obligation to accommodate disabilities or sincerely held religious beliefs.  Remember that “religion” and “disability” can be interpreted broadly under most federal and state laws. By definition, “religion” includes “all aspects of religious observance and practice, as well as belief.” Moreover, according to the Equal Employment Opportunity Commission (EEOC), protected religions are not limited to major, well-recognized faiths but also include “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”

For example, a federal court in Ohio in 2012 addressed whether devotion to veganism could be deemed “religious.” The employee in Chenzira v. Cincinnati Children’s Hospital Medical Center was denied accommodation and terminated after refusing the flu vaccine because it would violate her vegan practice of refraining from all animal products and by-products. The employer discounted her veganism as a dietary preference or philosophical notion, but the court disagreed.  

The court pointed out that the plaintiff cited religious passages in her request for accommodation. The court held that it was plausible that the employee “could subscribe to veganism with a sincerity equating that of traditional religious views,” particularly since she is not alone in holding to that belief.

What Accommodation Must Be Provided?

For an employee who declines to be vaccinated, the appropriate accommodation will depend on a variety of factors, including the nature of the employee’s position. Depending on the circumstances, appropriate accommodations may include modifying the employee’s work duties, finding an alternate version of the flu shot, transferring the employee to a vacant position, or providing a leave of absence. Once the accommodation is in place, you can continue working with the employee to make sure it remains effective and feasible.

What Does OSHA Have To Say About Flu Vaccinations?

The Occupational Safety and Health Act of 1970 (OSH Act) requires that employers provide their employees with working conditions that are free of known dangers. Encouraging flu vaccination for employees is one method of doing this. 

OSHA does not specifically require employees to take vaccines, but official OSHA guidance provides that you may institute such a requirement. OSHA’s guidance further provides that employees should be properly informed of the benefits of vaccinations. Employees who refuse vaccinations because of a reasonable belief that they have a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of the OSH Act pertaining to whistleblower rights.

What Else Can Employers Do?

A mandatory flu vaccination policy may be too rigid or administratively undesirable for your particular workplace. Or, quite possibly, you are in a state that specifically precludes such policies. To the extent this is the case, there are many other tools available to employers to minimize workplace disruptions caused by the flu.

  1. Encourage, but don’t require, all employees to get a seasonal flu vaccine each fall.
  2. Consider hosting a flu vaccine clinic at your workplace or provide resources to employees about where they can get a flu vaccine in their community.
  3. Develop and review leave policies that encourage sick workers to stay at home without fear of any reprisals.
  4. Advise all employees to stay home if they are sick until at least 24 hours after their fever is gone without the use of fever-reducing medicines. The Center for Disease Control (CDC) suggests employees should stay home for at least 24 hours after their fever (temperature of 100 degrees Fahrenheit) is gone. That’s because those with the flu are most contagious during the first three days of their illness. The CDC further advises individuals with confirmed or even suspected flu should stay home from work at least four to five days after the onset of symptoms, even if they do not have a fever.
  5. Ask sick employees to go home. Employees who appear to have a flu symptoms upon arrival, or who become sick during the workday, should be promptly separated from others and asked to go home.
  6. Develop other flexible policies to allow workers to telework (if feasible) and create other leave policies to allow workers to stay home to care for sick family members or care for children if schools close. Flexible sick leave or telework policies can discourage employees who feel the need to fight through their symptoms, and, in turn, reduce the overall disruption to the workplace.
  7. Provide resources and a work environment that promotes preventive actions to reduce the spread of flu. For example, provide tissues, no-touch trash cans, hand soap, and hand sanitizer.


Employees who get bogged down with the flu often think they’re doing the employer a favor by “toughing it out” and coming into work. Even if employees are vaccinated, there is no foolproof way to completely eliminate the flu from the workplace, especially in the retail setting. Implementing sick leave policies and encouraging employees to utilize these policies can go a long way to mitigate any workplace disruptions this flu season.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions