Mandatory Flu Shot Policies Inject a Healthy Dose of Controversy Into the Workplace

This year’s worse than average flu season has some employers wondering what they can do to help keep workers healthy. Just one flu-infected worker, after all, can infect the entire workplace and bring productivity to a grinding halt.

Employers have, of course, been through this kind of scare before. In 2009, when worries about a swine flu pandemic surfaced, many human resources professionals began reviewing and updating their disaster-planning procedures. Sales of hand sanitizer soared. And many followed the advice of the nation’s top health professionals by making it easier and cheaper to get a flu shot.

“We should encourage and make it as easy as humanly possible to get a flu shot,” said Helen Darling, president and CEO of the National Business Group on Health during an interview with HR Compliance eXpert. “Vaccinated employees have fewer sick days and days where they come to work sick and infect the workplace.”

Public health officials began recommending seasonal flu shots for everyone above the age of six months in 2010.  Last year, however, fewer than half of the eligible population got inoculated — about the same rate as in 2011, according to the CDC.

Rates, however, are much higher among health care professionals, many of whom are required — either by their employer, or by state law — to be inoculated. At least three states require health workers to get shots: Colorado, New York and Rhode Island.

Last year, more than 95 percent of health care professionals working in hospitals where flu shots were required got them; among HCP in hospitals not requiring vaccination, the vaccination rate was 68.2 percent.

“It’s strictly about patient safety,” said Lynne Karanfil,about the mandatory flu shot policy at MedStar Health, a large network of health care facilities in the Washington, D.C., metropolitan area where she heads up infection prevention efforts.

The hospital, which began requiring flu shots in 2009, skipped the difficult task of deciding which employees would be covered under the mandatory policy by applying it to everyone, including those who don’t have contact with patients, volunteers, contractors and affiliated doctors.

“All are required [to get the shots], no matter what they do,” Karanfil said.

The hospital does, however, make exceptions for employees with religious objections to shots or whose health would be harmed by them. Such instances, however, are rare. In 2009, all but about 30 of MedStar’s 25,572 employees got a flu shot — a 99.9 percent policy compliance rate. All but about 150 of MedStar’s 3,686 affiliated physicians also got a shot.

Union Opposition

Press reports about the recent firing of more than a dozen nurses for refusing flu shots  is highlighting the dilemma faced by health care employers that have turned to mandatory flu shots  hoping to keep their workplaces healthy and their patients safe.

Many employers that have implemented mandatory flu shot policies have done so despite union opposition.

In a high-profile dispute involving Virginia Mason Medical Center in Seattle and the Washington State Nurses Association, an appeals court upheld an arbitrator’s decision that the hospital had violated its collective bargaining agreement by adopting a mandatory flu shot policy without bargaining over it with the union. The National Labor Relations Board later ruled, however, that the adoption of the flu shot policy was not unlawful because the nurses had waived their right to bargain over this matter by agreeing to the management rights clause of the parties’ CBA. (See Implementing a Mandatory Flu Shot Policy: What Every Employer Should Know)

Last year, National Nurses United, a union representing registered nurses at MedStar and elsewhere urged the Health and Human Services National Vaccine Advisory Committee to abandon its recommendation that all health care professionals be required to get flu vaccines.

“The proposed policy of mandatory vaccination coerces employees into accepting the vaccine, or risk being punished, retaliated against, and, in some cases, fired by their employer,” said Deidre Beckford, a registered nurse at MedStar’s Washington Hospital Center, in a media statement.  “This is not the way to protect public health.”

“RNs care deeply about health policies regarding the transmission of the influenza virus in health care settings, but believe that comprehensive employer-sponsored voluntary vaccination programs can be effective only if extensive education is provided,” said RN Rajini Raj, a cardiac nurse at WHC.

Employees need to be educated on the risks and benefits of vaccination and safety programs, which must include “protective measures such as the provision of safe and appropriate respiratory and personal protection equipment, hygienic improvements  and thoughtful isolation procedures,” Raj said.

Other Considerations

There are many other issues, besides union objections, that employers hoping to reduce the risk of flu in their workplace should resolve, according to attorney Sarah Swank of Ober|Kalerin Washington, D.C. Among them:

• How to handle the reassignment of workers with a legitimate excuse for not getting a shot.
• Determining how a mandatory stay home policy for flu-infected workers squares with mandatory attendance policies.
• Deciding whether to require workers who opt to stay home with the flu must present a doctor’s note. (Usually a doctor can offer no remedy or cure for the flu or its symptoms.)
•  Deciding whether workers who have been diagnosed with the flu need to have medical clearance before returning to work.
• The appointment of a person or team to review exceptions to a mandatory flu shot policy.

“Employers have to set up a process and a policy,” she said. “The biggest problems that hospitals have is that they [establish a mandatory policy] in an emergency.”

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