By the time you read this article the 2019 – 2020 flu season will be in full swing, with its attendant symptoms: fever (or chills), cough, sore throat, runny nose, body aches, headaches, and fatigue. And according to the Center for Disease Control (CDC), this year’s flu season could be a doozie.

A safer approach is to follow good housekeeping practices and make flu shots a voluntary choice. That can prevent the flu season from becoming the sue season.

Data released by the CDC as the New Year dawned indicated at least 6.4 million cases were reported between October 1 and December 28, 2019. Those reported cases included 3 million involving medical visits, 55,000 hospitalizations, and 2,900 deaths.

Given that influenza is a serious medical condition, do dealerships have a role to play in limiting its spread? Granted, people are about as likely to look to dealers for medical advice as they are to Hollywood actors, for successful relationship tips. But by virtue of operating a mid-sized business with significant interaction with the public, dealerships are in a position to limit – or accelerate - the spread of the flu.

Should dealers make flu vaccinations a condition of employment? Simple yes-or-no questions should have simple yes-or-no answers. No such luck here. A dealer’s decision on this issue has not just medical implications but legal ones as well. We will unpack those here..

Why Dealers Might Want to Compel Inoculation

We described the symptoms of the flu above, and they are not pleasant. An estimated 2,900-plus deaths each year are nothing to sneeze at. Some studies suggest that the average adult over the age of 30 will get the flu twice a decade.

When the flu bug hits a workplace, it can wreak havoc. Obviously, the disease is contagious, and it can take well over a week to run its course. The average retail dealership, per National Automobile Dealers Association (NADA), has about 70 employees; few work in isolation. When one sick employee comes to work, the remainder are at risk, as are the dealership’s customers.

The CDC and National Institute for Occupational Safety and Health (NIOSH) estimate that U.S. businesses lose 17 million work days to the flu every year, which works out to about $7 billion in sick days and lost productivity. To put that in perspective, consider an employee who makes $50,000 per year. Assuming it takes the disease five work days to run its course, that equals an even $1,000 of lost productivity. And remember, that loss is contagious.

It is more than just the gross amount of lost productivity that impacts dealerships. Consider that a dealership may employ 36 service technicians and 2 F&I managers. Losing one technician would reduce that workforce by 2.77%. Losing one F&I manager would reduce that workforce by 50% – almost certainly resulting in a tangible revenue hit.

Work in a service drive can be more easily reassigned than in the F&I department. Anecdotal evidence suggests that 98% of F&I managers consider themselves overworked already. 

Can Dealers Compel Inoculation?

So, if a dealership’s managers want to mandate a flu shot, can it? Surprisingly, the answer is often yes. This takes us from immunology to the realm of employment law.

Most states are considered “at-will employment” states. This means that an employer can terminate an employee at any time for any reason – almost. Employers in at-will employment states may fire an employee for a good reason, a bad reason, or for no reason, but not for an illegal reason.

Illegal reasons include refusing a supervisor’s unwanted sexual advances and most forms of discrimination. Retaliation against a bona fide whistle-blower could also defeat an employee’s at-will classification, but such cases are relatively rare and would not preclude a flu shot requirement.

There is one particular exception that could come into play over time, and that is the public policy exception. Under the public policy exception, a dealership’s managers could not fire an employee if the termination would violate the state’s public policy or a state or federal statute.

One such public policy is embodied in California’s SB277, signed into law by Governor Jerry Brown in 2015. SB277 allows mandatory inoculation in public elementary and secondary schools with limited exemptions. Those exemptions involve medical waivers, not personal or religious beliefs.

As of this writing, there is no state or federal law that mandates flu shots or other inoculations in the dealership environment. But flu strains evolve over time and the law does, too. 

Why Dealers Might Not Want to Compel Inoculation 

All this suggests that a dealership is well within its rights to require annual flu shots. But should it? Read on. 

One reason why a dealership might not want to compel inoculation is that not everyone wants immunization. This is more than mere squeamishness. It is hard to imagine something more invasive than a needle stuck into your arm and a chemical injected into your system. The Constitution (Amendment 4) ensures “The right of the people to be secure in their persons.” Once an employer gets past necessary and convenient job duties, “I don’t wanna,” becomes a compelling argument.

And then there are objections based upon religious or philosophical beliefs. Some Muslim religious authorities, for example, have declared some vaccines to be unacceptable because they contain pork-derived products. To be fair, other Muslim leaders have come to the opposite conclusion. Christian Scientists and the Dutch Reformed Church also oppose vaccines, albeit for different reasons than Islam.

Within the Roman Catholic Church there is a strong opposition to the use of vaccinations derived from the stem cells of aborted human fetuses. Per the Vatican, such vaccines may only be used when there is no viable alternative and the refusal to use the vaccine would reasonably be expected to endanger others (e.g., pregnant women).

The Catholic prohibition would not historically implicate the flu shot, as those have generally been egg-based. The 2019 – 2020 flu season inoculation, however, is cell-based. Cell-based vaccines can be produced more quickly than egg-based vaccines, and should better target the anticipated strain of influenza it is designed to prevent. Whether cell-based production involves stem cells from aborted fetuses is not immediately evident.

But speaking of egg-based production, some people have egg allergies. Other people are vegan. Both classes (and especially egg-allergic vegans) would have a reason to refuse such vaccines. That objection should disappear as cell-based vaccines become the norm.

Finally, there is a class of people of unknown size with “vaccine hesitancy,” commonly known as “anti-vaxxers.” There are probably as many sincerely-held reasons to oppose vaccines as there are anti-vaxxers, but one reason is rooted firmly in science: vaccines – in particular the flu vaccine – don’t always work.

The reason flu vaccines can be a hit-or-miss proposition is that the producers of the vaccine must guess which strains of the flu will pose the greatest risk eight months in the future. Some years the experts are spot-on, or close to it. Other years (most recently, the 2014 – 2015 flu season) the predicted strains mutate to the point where the vaccine produced is not as effective against them. 

Finally, if a dealership requires flu shots, it would do well to make them available on-site. Requiring employees to go to a clinic for the shots could create a wage and hour issue if they are not compensated appropriately for the time involved (including overtime).

What Dealers Should Do to Prevent the Flu

Flu prevention is a laudable workplace goal, and one which should be taken seriously. Mandatory inoculation is possible, but not advisable without consulting your local attorney first. 

More palatable from an employee perspective is a voluntary vaccination program at the dealership and at dealership cost. Couple this with an educationaleffort that goes beyond bare inoculation. 

There are other ways to prevent the transmission of disease and these should be implemented whether vaccinations are mandatory or not:

• Wash hands frequently with soap and warm water.

• Frequently disinfect your phone (cell phones host ten times the bacteria of a toilet seat!).

• Keep hand sanitizer handy (doorknobs and keyboards are appropriate targets).

• Place anti-bacterial wipes in the break room (use them on the refrigerator and coffee pot handles and vending machine buttons).

• Aim sneezes towards your elbow, not your hand.

• Wipe down steering wheels and gear shifts before test drives.

Consider alternatives for employees that don’t want flu shots. Even the Centers for Disease Control (CDC) does not require flu shots for healthcare workers. It does, however, strongly encourage inoculation or, in the alternative, wearing a mask during the flu season. 

Another element of flu-prevention initiatives at the dealership would be to offer paid time off for employees suffering from the flu (with a doctor’s note, of course). While that won’t reduce the cost impact of those employees, it is effective at preventing others from contracting the flu. Removing the financial incentive to come to work sick is powerful medicine.

The Bottom Line

In a non-litigious vacuum yes, a dealership can probably require its employees to accept a flu shot. But there is a difference between “can” and “should.” A safer approach is to follow good housekeeping practices and make flu shots a voluntary choice. That can prevent the flu season from becoming the sue season.

James S. Ganther Esq. is the co-founder and CEO of Mosaic Compliance Services. He is a dealer compliance expert and a prolific writer and speaker. Email him at jim.ganther@bobit.com. 

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