Implementing a Mandatory Flu Shot Policy: What Every Employer Should Know

By: Sarah Swank
Credit: Ober|Kaler
Published: January 16, 2013

In 2009, concerns about a swine flu pandemic convinced some employers to consider requiring employees to be vaccinated. Now that we are in the midst of another flu epidemic, some employers are once again weighing the costs and benefits of a mandatory flu shot policy.

In this paper, Ober|Kaler health care attorney Sarah Swank examines some of the legal and operational obstacles hospitals, in particular, must overcome when implementing a mandatory flu shot policy. The advice, however, applies to any workplace.

The Effectiveness of Permissive Flu Shot Policies

Currently health care workers are not required by law to get a flu shot.But a number of states require hospitals to report their flu shot vaccination rates and a federal reporting requirement for flu shot rates at acute care hospitals went into effect Jan. 1, 2013. While offering, as opposed to mandating, staff flu shots avoids legal and operational complications, hospitals need to balance employee rights with what is in the best interests of their patients. Spreading the flu virus in a hospital presents unique patient care risks. Patients with long-term and chronic medical conditions risk serious complications from the flu. According to the Centers for Disease Control and Prevention, people infected with the flu may infect others both before and after experiencing symptoms. Others infected with the flu virus may never experience symptoms and unknowingly spread it to others.

Some argue that an optional flu shot policy may not effectively combat the unique risks to patients in a hospital setting or garner sufficient participation from health care providers. The U.S. Department of Health and Human Services estimates that about two-thirds of health care professionals now get vaccinated. But flu shot rates are much higher in health care environments where vaccinations are required.  HHS maintains a flu web page dedicated to educating health workers and others about flu vaccinations, presumably to reduce concerns and spur people to opt for the shots.

The CDC’s Advisory Committee on Immunization Practices and Healthcare Infection Control Practices Advisory Committee both recommend that all U.S. health care workers get vaccinated annually. However, health care agencies and accrediting bodies do not extend this recommendation to advocate for mandatory policies. In addition, The Joint Commission considered and rejected mandatory flu shot policies for health care workers. Since 2008, TJC has issued a TJC Flu Vaccination Challenge to hospitals, awarding bronze, silver and gold levels associated with staff vaccination rates. TJC looks for and shares best practices for flu shot participation, focusing on the best way to motivate staff to receive the flu shot, whether through fitness-for-work or permissive flu shot policies.

Mandatory Flu Shot Policies Considerations

As hospitals push forward with mandatory flu shots, some employees are pushing back. This resistance is nothing new. In Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905), more than 100 years ago, a citizen in opposition to a city law mandating the smallpox vaccine argued before the U.S. Supreme Court that “[a] compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent rights of every freeman to care for his own body and health in such a way as to him seems best.”

Before putting pen to paper to draft a mandatory flu shot policy, a hospital should consider the current legal environment, exemptions options and the scope of the policy as well as implementation issues. Those already working under a mandatory flu shot policy should take note on these issues to potentially revisit or revise current policies.

Union Concerns

When implementing a mandatory flu shot policy, a hospital should consider current and potential union involvement, and the union position on developing and implementing such a policy. Several unions that include health care worker membership have taken a clear stance on the flu shot issue. In 2010, SEIU sent a letter to its membership asking for opposition to mandatory flu vaccine programs, but asking for partnership related to its employers’ voluntary flu shot programs. In addition, the SEIU flu website contains information for health care workers to advocate against mandatory flu vaccine programs by employers.

The year swine flu hit the news, the SEIU challenged a hospital system’s mandatory flu shot policy. The policy identified employees who refused the shot with various color-coding, stickers and badges and required them to wear masks when interacting with patients for public health reasons. The arbitrator found that this policy affected employee work conditions and ordered the hospital to bargain with SEIU over its mandatory flu shot policy. SEIU is not the only union bringing a hospital to court over its flu shot policy. In Virginia Mason Hospital v. Washington State Nurses Association, 511 F.3d 908 (9th Cir. 2007), the 9th U.S. Circuit Court of Appeals upheld an arbitrator’s decision that Virginia Mason Hospital’s unilateral adoption of a mandatory flu shot policy without bargaining over it with union representatives violated the collective bargaining agreement. Interestingly enough, last July the National Labor Relations Board found that Virginia Mason’s adoption of the flu shot policy was not unlawful because the nurses union had waived its right to bargain over this matter by agreeing to the management rights clause of the parties’ collective bargaining agreement.

The bottom line: a hospital should carefully review any CBA before implementing a mandatory policy and pay particular attention to its management rights provisions.

Carving out Exceptions and Respecting Civil Liberties

Employers contemplating a mandatory flu shot policy should consider including provisions that exclude two classes of workers: those with a health condition that could be compromised by the vaccine and those who object to the vaccine on religious grounds. Each area has its own pitfalls. A bifurcated process might be preferred in overseeing the exemption process for each issue, but is often difficult due to limited resources.

Medical/Health Exceptions. While vaccine allergies and side effects are rare, they do exist. Hospitals should consider allowing an opt-out option for employees with medical grounds for declining the vaccination. The hospital could face potential liability if an employee suffers an adverse reaction to a shot administered under a mandatory policy. Hospitals considering implementing a health exemption to a mandatory flu policy should set up a confidential review process that applies consistent standards for health exemptions, such as a requirement for a physician’s note related to medical contradictions similar to other fitness-for-duty issues.

Religious Exceptions. Religious exemption from mandatory flu shot policies involves constitutional principles of civil liberties. As the Supreme Court explained in Wisconsin v. Yoder, 406 U.S. 205, 215–216 (1972), “[a]lthough a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” Accordingly, first and foremost is the question of what constitutes a religion. Title VII of the Civil Rights Act of 1964 defines religion as “all aspects of religious observance and practice, as well as belief.” Title VII requires that an employee have a bona fide religious belief, as opposed to a purely personal preference, but religious beliefs protected by Title VII need not be “acceptable, logical, consistent, or comprehensible to others.” Title VII also mandates that a protected religious belief or practice be sincerely held.

Similar to health exemptions, hospitals must take a consistent and well-guided approach to determining if a staff member has a bona fide religious belief that is sincerely held by that individual. Again, similar to health exemption, the hospital should consider whether to require a note, in this case from the employee, a pastor or other spiritual counselor. The hospital should weigh the pros and cons of questioning the staff member in person. In addition, a hospital should consider setting up a separate process for health exemptions versus religious exemptions. Perhaps decisions on religious objections and policy scope would be best served by one dedicated, confidential committee with articulated criteria.

Determining Staff Consequences for Failure to Be Vaccinated

Once a hospital determines it will enforce a mandatory flu shot policy, it must next determine the consequences for noncompliance. For example, corrective action or termination for failing to get the flu shot within the recommended timeframe for that year’s flu vaccine. Infection control measures also may be implemented for health care workers refusing the flu shot. A hospital also could establish a hiring policy that requires evidence of flu immunization as fitness for duty.

Several health care organizations, including American Association of Family Practitioners, National Patient Safety Foundation and National Foundation for Infectious Disease, support vaccinations for health care workers and in certain cases measures such as use of masks and refraining from patient contact. Hospitals should keep in mind that policies that change working conditions for employees could provoke third-party involvement. If the policy is mandatory but carves out exceptions for certain specific objections, the hospital must consider how it will treat the un-vaccinated employees. SEIU argues that the use of masks is not effective for preventing the flu, although the CDC currently lists mask-use as a precautionary measure. If the hospital chooses to identify the un-vaccinated employee with a sticker or colored identification badge, it should educate its workforce on the public health rationale. In any event, the hospital should ensure that these measures are designed to increase patient safety and promote the public health rather than be punitive toward employees.

Determining Who Should Be Vaccinated

When drafting or reviewing a flu shot policy, the hospital should keep in mind who will be required to be given the flu vaccine. Each group of individuals comes with its own set of legal and operational issues. Careful consideration of the scope of a mandatory policy’s scope before implementation can avoid legal issues down the road. In assessing how far-reaching the hospital’s flu policy should be, it is important to also consider the financial and administrative costs associated with a broad policy.

• Employed Staff. The hospital can narrow those individuals required to have a flu shot to just employed staff members with patient contact. Hospitals should be careful in defining patient contact. In the alternative, a policy could require flu shots for all staff members regardless of patient contact or entry into patient care areas.
• Medical Staff. Independent medical staff members may have patient care contact on a regular basis or may rarely set foot on campus. Hospitals should consult their medical staff by-laws before implementing mandatory flu shots for their independent medical staff. Medical staff leadership buy-in will be important to implement such a policy.
• Volunteers and Students. Volunteers and students often find themselves in patient care areas even if they are not providing direct patient care. Hospitals should be cognizant of consent issues with non-employed groups. For example, many hospital volunteers are minors such as high school students, who require parental consent to be vaccinated.
• Vendors. Vendors provide valuable services to hospitals. Some vendors provide services on the campus, while others will never enter the hospital. For example, vendors that service medical equipment may enter into patient care areas.

Again, each group of people comes with its own unique considerations and challenges, such as discrimination issues and tracking of compliancy with the policy.

Don’t Forget Operational Issues

Hospitals must think through all the issues associated with instituting a mandatory flu shot policy to ensure that policy will fare well in the face of both a legal and public challenge. Consistency is key to avoid discrimination and civil liberty claims. Practical issues such as vaccine shortage must be addressed in any mandatory flu vaccine policy. If the policy will be implemented and enforced by committee, the composition of the committee should be carefully considered. If employees are granted exemptions within the scope of a mandatory flu policy, the hospital’s treatment of these employees must not be retaliatory or punitive. Overall, the hospital should educate its staff and patients on its policy rationale. Focus on what might best motivate your workforce to be vaccinated against the flu and protect your patients from contracting the flu while on your campus.

Flu Shot Policy Checklist Developing a mandatory flu shot policy in your workplace? Here are some things to consider. Got unionized employees? Be sure to check your contract to see if a flu shot policy needs to be negotiated. Which employees do you want to cover? How will you handle nonemployees, including volunteers and contractors? How will you handle exceptions: Under what circumstances will you grant a waiver; who will decide if an employee seeking a waiver is eligible? If you mandate the policy, who will preside over waivers? Who will be the point person who considers employee requests for waivers? Should it be a medical expert, someone from human resources or both? If you plan to require shots, consider informing individuals during the interview process.

Sarah Swank is a principal in the health care law group at Ober|Kaler in Washington and is co-founder of the Ober|Kaler Health Care General Counsel Institute. She provides advice and guidance on a wide range of health law issues, including health care reform, Stark, antikickback, health information technology (meaningful use, HIPAA privacy, HITECH breach reporting), clinical research and IRBs, health care transactions, governance, due diligence, EMTALA and compliance. Kristina J. Longo, an associate in Ober|Kaler’s antitrust and competition, health and litigation groups, assisted in the research of this paper.