Should the severe start to flu season lead your workplace to require flu shots? 2 main considerations for employers

In a “post-pandemic” workplace where precautionary measures have become familiar, controversial mandatory inoculations continue to represent a double-edged sword in employers’ efforts to maximize workplace safety.

The Centers for Disease Control and Prevention recently reported the start of the most severe flu season in over a decade, leading employers of all types to decide whether they should mandate flu shots for their workforce. The flu season typically runs between October and May with a peak in January and February, but surprisingly high numbers of infection, hospitalizations, and flu-related deaths sprouting in late August has raised the attention of employers. And despite the threat and the CDC’s strong encouragement to inoculate against influenza for the past few months, the number of flu shots administered across the country is lagging at this stage in the season. Even outside the healthcare industry – where required annual flu shots are standard practice – some employers who are already facing staffing shortages may therefore be tempted to mandate the flu shot to avoid outbreaks and maintain necessary staffing levels. What are the two main legal and practical considerations you should take into account before making this determination?

Setting the Stage: Law is Nuanced

In a “post-pandemic” workplace where precautionary measures have become familiar, controversial mandatory inoculations continue to represent a double-edged sword in employers’ efforts to maximize workplace safety. In fact, the analytical framework for flu shots initially guided the discussion on whether private sector employer could require employees to receive the fast-tracked COVID-19 vaccinations.

Federal law allows most private employers to mandate flu shots. The Occupational Safety and Health Administration (OSHA), for example, allows mandates. After the 2009 Influenza A (H1N1) Pandemic caused concerns of a heightened seasonal flu outbreak, the agency released guidance enabling employers to require flu shots. However, “employees need to be properly informed of the benefits of the vaccinations.”

Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) commentary reveals a strong directive to encourage rather than require them. These two approaches set the stage for your workplace decision.

1. Evaluate and Handle Accommodation Requests on an Individualized Basis

The EEOC and courts have repeatedly emphasized that some employees may be legally entitled to accommodations for medical conditions or sincerely held religious beliefs preventing their inoculation. Failure-to-accommodate legal claims are currently numerous, requiring employers to navigate these challenging legal obstacles. The same is true of mandatory flu shots.

In dealing with medical or religious-based accommodation requests from masking, the same analysis applies. You must evaluate all requests individually to determine whether the proposed accommodation would enable the employee to perform all the essential functions of their job without creating an undue risk of harm or imposing an undue hardship on your workplace.

Take note, however, that varying state laws may affect the legal analysis. Although several states have limited (or even prohibited) mandatory COVID-19 vaccinations, state laws restricting mandatory flu shots are far less common.

2. Even Though Mandatory Flu Shots are Legal, They May Not be Right For Your Workplace

As employers continue to bounce back from the havoc of the pandemic, the biggest challenge for many has been finding and retaining qualified workers. This challenge continues. However, experience has shown that a segment of most workforces, varying by industry and location, will oppose any sort of mandatory vaccination. Any employer considering mandates must gauge the potential risk of losing (or disrupting) employees weighed against the benefits of requiring flu vaccinations, especially where flu shots were not previously required.

This issue must be assessed based on each employer’s circumstances and workforce. Even though flu shots have a longer proven track record than COVID-19 vaccines, mandates are almost certain to generate some level of pushback. If you want to avoid such pushback and feel you can get by without a flu shot mandate, consider other alternatives.

• Many employers now have experience in virus outbreaks, and thus have refined their approach in responding to objections and requests for accommodations. You are now well-versed in alternative safety measures to prevent viruses from spreading, and you may want to use this knowledge to good effect when combating the flu this season. You might consider re-introducing measures such as masking, social distancing, and providing antibacterial lotions to the workplace.

• Further, consider a temporary return to the virtual workplace. After all, employers and employees alike are now adept at the work-from-home or hybrid models.

• Our recent experience has also proved that education and incentives to be effective tools in encouraging workers to inoculate.

Conclusion

Nonetheless, there is no one-size-fits-all solution to employee hesitancy. In short, these scenarios can be complicated and will demand individualized attention. Therefore, before implementing flu shot mandates, consider all these variables in light of the risks you wish to mitigate as well as the composition and experiences of your individual workplace.

Save even more in 2023: IRS releases 2023 annual limits for retirement plans 

Employers that sponsor tax-qualified retirement plans should consider any necessary adjustments to plan administrative procedures and update their participant notices.

Seyfarth Synopsis: The IRS just announced the 2023 annual limits that will apply to tax-qualified retirement plans. For a second year in a row, the IRS increased the annual limits, allowing participants to save even more in 2023. Employers maintaining tax-qualified retirement plans will need to make sure their plans' administrative procedures are adjusted accordingly.

In Notice 2022-55, the IRS announced the various limits that apply to tax-qualified retirement plans in 2023. The "regular" contribution limit for employees who participate in 401(k), 403(b) and most 457 plans will increase from $20,500 to $22,500 in 2023. The "catch-up" contribution limit for individuals who are or will be age 50 by the end of 2023 will increase from $6,500 to $7,500 in 2023. Therefore, if participants are or will be age 50 by the end of 2023, participants may be eligible to contribute up to $30,000 to the ir 401(k) or 403(b) plan in 2023.

The maximum amount that may be contributed to a defined contribution plan will increase from $61,000 to $66,000 in 2023. Additionally, the maximum annual compensation that may be taken into account under a plan will increase from $305,000 to $330,000 for 2023. For individuals investing in individual retirement accounts (IRAs), the annual contribution limit will increase from $6,000 to $6,500 for 2023 (for those who are catch-up eligible, this limit will increase from $7,000 to $7,500 for 2023).

The Notice also includes several other notable retirement-related limitation changes for 2023, including the dollar limitation on the annual benefit under a defined benefit plan, which increases from $245,000 to $265,000; the dollar limit used to determine a highly compensated employee, which increases from $135,000 to $150,000; and the dollar limit used when defining a key employee in a top-heavy plan, which increases from $200,000 to $215,000.

Individuals should check their plan contribution elections and consult with their personal tax advisor before the end of 2022 to make sure that they take full advantage of the contribution limits in 2023. Given the numerous changes, employers who sponsor a tax-qualified retirement plan should consider any necessary adjustments to plan administrative procedures and update their participant notices to ensure proper administration of the plan in 2023

Employers who sponsor defined benefit pension plans (e.g., cash balance plans) should review the new limits in the IRS Notice and make any necessary adjustments to plan administrative/operational procedures.

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.

Quiet Firing: What Employers Need to Know Before Engaging in the Trending Form of ‘Discipline’

“Quiet firing” refers to an employer who, instead of terminating an underperforming employee, simply reduces (or eliminates) the employee’s hours and/or responsibilities until the employee voluntarily quits.

“For every action there is a greater or equal reaction.”

Newton's Third Law of Motion appears to be playing out in real time in the employment law context. In response to the action of “quiet quitting,” where employees reduce their efforts to perform only the bare minimum at their jobs instead of actually quitting, some employers have begun to react by engaging in “quiet firing.”

“Quiet firing” is now a trending term which refers to an employer who, instead of terminating an underperforming employee, simply reduces (or eliminates) the employee’s hours and/or responsibilities until the employee voluntarily quits. Because this maneuver relies on the employee's dependance on hourly wages, it typically only comes into play for hourly, non-salaried employees who would feel the immediate effects of a reduction in hours. In theory, the employee will quickly realize that they cannot afford to continue their employment in the reduced capacity and will either find alternate work elsewhere or conform to the employer's expectations.

There are several reasons why an employer might “quiet fire” a problematic employee instead of terminating them. First, the manager or supervisor wishing to terminate the employee may want to avoid a confrontation. Second, the manager or supervisor may prefer this method to allow them not to feel negatively about the termination because the onus is now on the employee to end the employment relationship. Finally, some employers may see this as an opportunity to avoid unemployment compensation claims because employees who resign normally do not qualify for benefits.

Despite what may appear to be beneficial to employers who “quiet fire” employees, employers should resist the urge to utilize this tactic as the potential consequences outweigh any perceived benefits. For example, reducing an employee’s hours very well could be considered an adverse employment action should the employee file a complaint of discrimination or retaliation. Moreover, even if the hours reduction is determined not to be an adverse employment action in and of itself, it could form the basis of a constructive discharge claim, particularly if the employee’s scheduled hours are eliminated completely. At the very least, a reduction of hours may be used to demonstrate disparate treatment between employees and serve as anecdotal evidence to prove discrimination.

What should employers do? Although it may sound tempting, employers should not react to the quiet quitting trend by resorting to quiet firing problematic employees. Instead, employers should continue to use traditional methods to address problematic behavior including coaching and progressive discipline. Should those efforts prove unsuccessful, managers and supervisors need to be ready to have the difficult conversation necessary to terminate the employee. Not only will this protect the employer’s reputation as a good workplace and provide goodwill for the business, but it will also lead to a happier, more stress-free workplace because employees will not have to fear that they may be quiet fired without warning or the opportunity to improve their performance. Finally, it will save time and money in the long run should a terminated employee file a charge claiming discrimination or retaliation.

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.