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BusinessColumnistsCarrie Mason-Draffen

Worker can be fired for refusing to get a mandatory flu shot

A hospital may require workers to get flu

A hospital may require workers to get flu shots, and fire those who refuse. Photo Credit: Getty Images/iStockphoto / Bet_Noire

DEAR CARRIE: Can employers in New York State legally force health care workers to receive a flu shot? In the past, we nurses had the option to refuse the vaccine and could, instead, wear a facial mask near patient-care areas during the flu season. Now the hospital is no longer giving us a choice. Unless we have a medical reason for refusing a flu shot, we must get vaccinated or we will be terminated. — A Shot in the Arm?

DEAR A SHOT: It appears your employer can legally institute such a policy, according to the state Department of Health.

“This is an employer-employee relations issue, which is beyond the scope of the Department’s regulation,” said Jill Montag, a department spokeswoman.

State regulations go as far as the mask.

“New York State regulations require health care workers in certain facilities regulated by the New York State Department of Health to wear surgical or procedure masks if they have not had a flu vaccine while influenza is prevalent in New York,” Montag said.

The federal government goes a step further, but stops short of requiring a flu shot for health workers.

“Because health care workers are at increased risk of acquiring influenza from their contact with ill patients, the Centers for Disease Control and Prevention strongly recommends that health care workers be vaccinated for influenza,” Montag said. “Wearing a mask can reduce transmission and is an alternative for individuals who cannot be vaccinated or who refuse vaccination.”

As for terminating you, unless you are covered by a union contract or an individual employment agreement, the hospital could terminate you at any time and for any reason, including for violating its flu vaccination policy.

DEAR CARRIE: When I signed onto a privately owned bus company, the human-resource representative explained the employer’s strange method of determining overtime pay. The explanation in essence is that the more overtime you work, the less you receive in hourly overtime pay. Recently I worked 11 hours of overtime and was paid approximately one third of my regular hourly pay for the overtime hours. So the overtime worked out to slightly more than $6 an hour. Shouldn’t the overtime rate be 1 1⁄2 times my regular hourly wage, since I am a nonexempt employee?

I have brought this to the owner’s attention, but he said there was nothing he could do. If it is illegal, what should I do?

— Peanuts for Overtime

DEAR PEANUTS: If you are an interstate bus driver, you may be exempt from overtime provisions of the federal Fair Labor Standards Act because you may be covered by the Motor Carrier Act.

It’s an entirely different story if you are entitled to overtime. In that case you must be paid the mandated overtime rate of 1 1⁄2 times your regular hourly wage for every hour over 40 in a week. So if you make $12 an hour, for example, your overtime rate should be at least $18.

Some workers wrongly think that they must earn overtime whenever they put in extra hours, such as staying an hour late one day during the week. While hourly workers have to be paid for all the time they work, they don’t have to be paid an overtime rate until they cross the 40-hour mark for the week.

Let’s get back to the $6 an hour you mentioned. If you worked more than 40 hours a week and your overtime pay worked out to just $6 an hour, that amount would violate not only overtime rules but minimum wage laws as well. The state minimum wage for Long Island currently stands at $10 an hour.

What should you do? You could show your boss this column.

Or you could call the state Labor Department for more guidance at 516-794-8195 or at 212-775-3880, if you work in New York City.

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