Mandating Flu Vaccines: What Employers Should Know

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By Richard D. Alaniz
Seasonal flu is not only unpleasant for employers and employees, it's expensive. Each flu season, nearly 111 million workdays are lost because of the flu, the US Department of Health & Human Services has found. That represents approximately $7 billion per year in sick days and lost productivity.
It's no wonder that some companies are considering requiring that employees get a flu vaccine every flu season. However, before implementing such a requirement, companies need to consider many different factors. While a flu vaccine offers the greatest protection against the virus, mandating it carries its own logistical costs and can lead to unhappy employees.
During the last flu season, a hospital in northern Indiana fired eight workers who refused to get vaccines against the seasonal disease. According to several media reports, IU Health Goshen Hospital had instituted a policy requiring employees to get flu shots. Several employees balked at getting the shots and tried to seek exemptions. The hospital decided not to grant exemptions and terminated the workers when they refused to change their minds. 
For the hospital, maintaining a healthy work environment was critical. "IU Health's top priority is the health and well-being of our patients," the hospital announced in a press release. "As a trusted leader in caring for people and advancing health, we are responsible for delivering the best care in the safest environment. Influenza can be fatal for patients with weakened immune systems, children, and the elderly. Therefore, participation in the annual Influenza Patient Safety Program is a condition of employment with IU Health for the safety and health of the patients that we serve."
If your company is considering a mandatory approach, here's what you need to know in order to achieve the organization's goals of a healthier work environment while minimizing legal risk and worker discontent. 
The Effects of the Flu
While the flu is generally an unpleasant experience for most healthy adults, it can be extremely serious and even fatal. The flu is a contagious respiratory illness caused by viruses, according to the Centers for Disease Control and Prevention. Symptoms can range from mild to severe. "The best way to prevent the flu is by getting vaccinated each year," the CDC says.
While most people recover from their symptoms in less than two weeks, some may have complications that include pneumonia, bronchitis, and sinus and ear infections. Those with chronic health problems, such as asthma, may see them worsen after a bout with the flu. 
Part of the problem with the flu is its unpredictability. The flu can strike down anyone, even those who are healthy. It's impossible to know from one season to the next how serious the flu may be, or even how effective the vaccines against it will be. 
Trends in Flu Vaccine Requirements
An increasing number of employers, particularly in the health care field, are requiring employees to receive the vaccine as a condition of employment. A growing number of states are also requiring the vaccine for health care workers.
Johns Hopkins Medicine group, which requires most employees to get the vaccine, has reported that more than a dozen states require health care workers get the flu shot in some situations. 
However, a backlash to these requirements is also growing. A Wisconsin legislator has proposed a law that would ban mandatory flu vaccines in that state. According to an article by the Associated Press, Representative Jeremy Thiesfeldt has written a bill that would prohibit employers from demoting, suspending, discharging, or discriminating against employees who refuse to get the shot. 
Some employees and unions object strenuously to a vaccine mandate and have responded with legal action. Although it has since withdrawn its lawsuit, last December, the SEIU Healthcare Employees Union District 1199 attempted to stop the Rhode Island Department of Health from requiring members of its union to either get a flu vaccine or wear a mask during contact with patients. 
Recently, the US District Court for the Southern District of Ohio allowed an employee who had been fired for refusing a vaccine to continue with her lawsuit against her former employer. Sakile S. Chenzira sued Cincinnati Children's Hospital Medical Center, claiming it discriminated against her religion by terminating her when she refused to get the vaccine. Chenzira is a vegan, and since the flu vaccine contains chicken eggs, she claimed that getting the shot would violate her beliefs. The hospital unsuccessfully tried to get the lawsuit thrown out, arguing that veganism is not a religion. 
According to the ruling by US Senior District Judge S. Arthur Spiegel, "The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views."
The Right Approach for Your Company
Considering how expensive seasonal flu can be, it makes sense for companies to try to keep their workforces as healthy as possible. Generally speaking, employers have the right to require a flu vaccine as a condition of employment. However, there are exceptions. 
In some industries, a mandate requiring flu vaccines may make the most sense. This is particularly true when employees work with sick people or have close contact with others. However, other employers may want to consider whether they may be able to achieve less absenteeism and a healthier workforce by encouraging, rather than requiring, employees to get the vaccination. It's worth noting that the flu vaccine will not completely eliminate the flu, even if every employee gets a shot. According to the CDC, the vaccine for the 2012-2013 flu season was about 60 percent effective. 
If a company decides a mandatory flu vaccination policy represents the best approach for workers, customers, and others, there are several things employers should keep in mind:
Create a clear, legally sound policy. When developing a policy, work closely with counsel and the HR department to write one that will stand up to any legal challenges. Be sure to check your state's laws as well. 
Once the policy has been created, the company needs to spread the word so that new and current workers understand what the expectations are.
Prepare for the paperwork. When vaccines are required, managers, supervisors, HR, or someone else will need to ensure that employees get their shot in a timely manner. It's important to think through the record-keeping process before diving in.
Recognize room for exceptions. Some employees simply won't want to get flu vaccines, for a variety of reasons. Some may be based on personal choice, others may feel that it goes against their religion, and others may have legitimate medical reasons for avoiding the flu vaccines. For example, the CDC recommends that people with a severe allergy to chicken eggs or people with a history of Guillain-Barré syndrome talk to their doctor before getting a shot.
When requiring a vaccine, employers should develop a system that allows employees to request an exemption. While employers may feel that some of these requests are more legitimate than others, they should take each one seriously in order to head off potential legal issues. 
When reviewing exceptions, companies should turn to medical experts, since supervisors and managers will not have the knowledge or experience to determine when an exception is warranted. Using an impartial, outside expert to rule on exemptions can also help to build trust in the program. This includes input from the employee's personal physician.
Understand that workers may operate under different sets of rules. While employers generally have the right to institute a mandatory flu shot requirement for at-will employees, the situation may be different for other groups. This is particularly true for union workers, unless the matter has specifically been addressed as part of the collective bargaining agreement. If your workers are members of a union, you will have to work with the union in order to implement a flu vaccine policy that is legally enforceable.
Work with employees. When requiring, or even just encouraging, vaccination, employers should make it as easy as possible to improve participation. The CDC recommends hosting cheap or free vaccine clinics at work sites. Setting up clinics is often easiest for employers that have on-site health clinics, but those without such facilities can contract with pharmacies and other providers that offer seasonal flu vaccines. 
Many employees may also have concerns about the safety and efficacy of the flu vaccine. If your company decides to mandate the vaccine, make extra efforts to provide information to answer employees' questions and address their concerns. Be sure to stress the benefits to employees about how the vaccine will help everyone avoid the flu. Consider offering the nasal spray flu vaccine as well as the injection method, since some employees may likely have a fear of needles. 
Many companies are investing in staying healthy through the flu season. By carefully considering flu vaccines in their specific industries and workforces, these companies can keep employees healthy and on the job and avoid legal problems at the same time.
Read additional labor and employment law articles by Richard Alaniz.
About the author:
Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the US Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Rick at (281) 833-2200 or [email protected].


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Note that "60% effective" means something like the following:

"The combined results of these trials showed that under ideal conditions
(vaccine completely matching circulating viral configuration) 33 healthy
adults need to be vaccinated to avoid one set of influenza symptoms. In
average conditions (partially matching vaccine) 100 people need to be
vaccinated to avoid one set of influenza symptoms. Vaccine use did not
affect the number of people hospitalised or working days lost but caused
one case of Guillian-Barré syndrome (a major neurological condition
leading to paralysis) for every one million vaccinations. Fifteen of the
36 trials were funded by vaccine companies and four had no funding
declaration. Our results may be an optimistic estimate because
company-sponsored influenza vaccines trials tend to produce results
favorable to their products and some of the evidence comes from trials
carried out in ideal viral circulation and matching conditions and
because the harms evidence base is limited.. " -- Cochrane Summaries, "Vaccines to prevent influenza in healthy adults"

Also from the summary:

"Over 200 viruses cause influenza and influenza-like illness which produce
the same symptoms (fever, headache, aches and pains, cough and runny
noses). Without laboratory tests, doctors cannot tell the two illnesses
apart. Both last for days and rarely lead to death or serious illness.
At best, vaccines might be effective against only influenza A and B,
which represent about 10% of all circulating viruses. Each year, the
World Health Organization recommends which viral strains should be
included in vaccinations for the forthcoming season."

I would never work for a company which mandated flu vaccines (or vaccines of any kind). I am 51 years old and have never had a problem with the flu. If you limit your dietary intake of sugars to unprocessed foods (e.g., fruits, root vegetables, etc.), and get sufficient sleep, most people would be much more healthy, including suffering extremely mild forms of viral illnesses.

LOL. Really? Mandating flu vaccines doesn't just lead to "unhappy employees", it leads to Civil Rights violations.

It is not a civil right violations. Working in the healthcare industry, such as a hospital, an employee assumes additional responsibility to the public. I am a nurse, and every hospital I have worked at has mandated flu shots for all employees. We deal with very sick patients with compromised immune systems. We have an obligation to do everything possible to keep them safe. While the flu shot is only about 60% effective, it's better than nothing. We are doing our best to protect our patients.

microglial inflammation associated with Alzheimer's. Flu vax inflames microglia

Thank you! I have been saying this all over facebook and being attacked! My grandmother never missed a flu shot and died from the effects of Alzheimers. My dad who also has never missed a flu shot now has Alzheimers. These illnesses were not as prevalent years ago when we didn't force these vaccines. People say that those of us who take this stance are using fear to get people to listen to us (ie., mercury, aluminum, formaldehyde). I counter with "the same could be said about the CDC and Drug companies who say there will be a FLU outbreak and thousands will die".

I'm a nurse as well and while I personally disagree with forcing the Flu Vaccine for many reasons I can see the reason for mandating it for healthcare workers with direct patient contact. I, however, am an administrative nurse and. Have no face to face patient contact yet my employer requires all nurses receive the flu vaccine. Why should I have to have a vaccine I don't believe to beneficial injected in my body or risk termination? Especially since I do not work with any at risk populations?

According to parts of a paper submitted by

Kristy L. Williams, LL.B, LL.M candidate

"The Supreme Court in Jacobson v Massachusetts has held that four elements should be considered in determining whether a mandatory immunization was justified in the name of public health namely: necessity, reasonable means, proportionality, harm avoidance. Due to the low effectiveness of influenza vaccine, it makes this more difficult to justify. Also, all employees potentially have rights that may be infringed by mandatory vaccination policies under the Americans With Disabilities Act ("ADA");19 or the Civil Rights Act of 1964 title VII.20 Although most mandatory vaccination policies contain exemptions where there is a valid medical reason, even if the absence of an express exemption, an exemption would likely be required under the ADA with the need for such an exemption increasing as the vaccine effectiveness decreases. The Equal Opportunity Employment commission stated that "[a]n employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense)".21 As the effectiveness of a vaccine decreases, it will become increasingly difficult for an employer to demonstrate a case of undue hardship as in the case of a vaccine that is 60% effective, it will be difficult to justify not granting exceptions where 40% of people who have received the vaccine may be in the same position to contract and transmit influenza as the person seeking the exemption. Furthermore, there is a lack of evidence that other measures such as hand washing, face masks, and liberal sick leave or policies encouraging employees not to attend work while ill would not be as effective as the low level of protection provided by influenza vaccination at reducing influenza transmission within a hospital, making it difficult to demonstrate undue hardship."
The flu vaccine has not reduced patient influenza cases. The study that started all of the mandatory flu vaccination has been found to have been flawed. Subsequent studies and meta-analyses have shown that mandatory flu vaccination for healthcare workers does not decrease patient influenza cases.
The United States was founded on freedoms. The government requiring you to get a flu vaccine or you will lose your job denies those basic freedoms and is tantamount to communism.

We have started a petition against this mandate. We believe it should be the parents choice and not have it forced on our children. Please sign our petition and share it on Facebook if possible we could use your helping getting it out there.

I don't believe that any Employer should have the right to mandate that you put any type of Injection (drug) into your body without your consent - What's next?

Go to hell with your shots. I don't do flu shots, heroin shots or any kind of drug shots.

The flu shot has and does hurt many healthy people each year. If it was so safe they why are lawsuits blocked? Some vaccines are made with aborted baby fetal cells...sooooo evil.

What if I lied about taking the flu shot. Can my employer prove that I didn't have the flu shot?