As flu season approaches, health care employers need to ensure that all their employees get their flu vaccinations.  If this has not happened in the past, employers should look at how to achieve this goal.  Many employers may be able to do it through a voluntary program, including employee education, reminders, paying the cost of vaccinations, and/or providing the vaccinations at or near their facility.  Alternatively, health care employers can assess whether they want to implement a mandatory flu vaccine policy.  This assessment involves considering several factors, including the success rate of voluntary vaccination programs, legal implications, patient and employee safety, liability risks, workplace efficiency, employee rights, and employee morale.

It is estimated that the flu costs U.S. businesses $77 million a year in absenteeism, lost productivity, and other costs.  Flu accounts for almost 40% of all illness-related work days lost for unvaccinated employees.  The Centers for Disease Control and Prevention (“CDC”) recommends that everyone six months and older be vaccinated against influenza as soon as the seasonal vaccines are available.

The case for mandatory immunization of health care workers is compelling.  The CDC strongly recommends annual flu vaccination for health care workers beginning in October in order to “protect patients, and communities, and [to] improve prevention of influenza-associated disease and patient safety.”  Similarly, the American Academy of Pediatrics recommends the “implementation of a mandatory influenza immunization policy for all health care personnel.”  Despite the above recommendations, the CDC reported in August 2011 that: only 13% of health care workers report that their employers require flu vaccinations, and only 63% are vaccinated without an employer mandate.

Mandatory immunization of health care workers is not without controversy.  Certain employees, unions, and advocacy groups have attacked these policies as violating employee privacy rights.  Most suits challenging these policies have been directed at public health care workers who have certain constitutional protections regarding their employment.  We could find no reported cases that struck down mandatory immunization policies instituted by private employers in a non-union setting.

However, several courts have held that employers with unionized workforces need to negotiate the implementation of a mandatory vaccine policy with the union.

At the federal level, OSHA’s stated position is that employers may mandate that employees take H1N1 and other seasonal flu vaccines.

Because Texas is an at-will employment state, private health care employers in Texas should be able to unilaterally institute mandatory flu vaccine policies as to their at-will employees.  Except as discussed below, these employees may either accept the new policy by continued employment or resign.  However, there have been no Texas court decisions specifically addressing this issue.

There are, however, limitations on the application of mandatory vaccine policies.  For instance, the Equal Employment Opportunity Commission (“EEOC”) takes the position that under Title VII and the ADA, an employee may be entitled to an exemption from mandatory vaccinations based upon a disability, medical condition (e.g., severe egg allergy or a past severe reaction), or sincerely held religious beliefs that prevent the employee from taking flu vaccines.  The question of whether the ADA requires a reasonable accommodation regarding a particular employee and what constitutes the same is fact-specific, as is the question of how to protect patients and employees when granting an exemption (e.g., requiring the unvaccinated employee to wear a surgical mask around patients).

The manner of implementing a mandatory flu vaccination policy is critical to achieve employee acceptance and to limit objections.  Keys to successful implementation include:

  • Educate, Educate, Educate.  Provide education and reeducation to employees on the need for immunization.
  • Written Policy.  Develop a written policy that includes:
    • A policy statement that vaccination is needed for employee and patient safety;
    • A process for employees to raise concerns and objections; and
    • An authorization form.
  • Remove Barriers.  Remove cost and access barriers to immunization (i.e., pay for on-site vaccinations).
  • Communicate.  Communicate with employees on the reasons for the policy and allow employees to ask questions.
  • Address Objections.  Address any employee objections on an individualized basis, assessing relevant factors without being dismissive of the objections or taking arbitrary positions.  Keep objections confidential.

Brown McCarroll has developed an implementation package, including a written policy and educational materials, which can be customized to meet your needs.  Please call our attorneys for assistance.