Echoing last year’s challenges of mandatory flu vaccinations for healthcare workers, a healthcare employee has filed a putative class action against AnMed Health, a network of hospitals and healthcare facilities in South Carolina, claiming that mandatory flu vaccination requirements constitute an unreasonable invasion of privacy under that state’s constitution and common law.

AnMed Health’s Influenza Immunization Protocol provides that “unless an approved exemption is made,” the flu vaccination will be “a condition of initial and continued employment of all AnMed employees....” The Protocol permits employees to request an exemption from the immunization requirement, but only for conditions listed in the guidelines from the Centers for Disease Control (CDC), which currently are: severe egg allergy, severe allergy to any component of the vaccine, a past severe reaction to the influenza vaccine, or a history of Guillain-Barre syndrome.  The Protocol requires employees who are unvaccinated because of an exemption to wear surgical masks while on duty if they have direct patient contact, or, if they do not have direct patient contact, when they are within six feet of another individual. Employees without an approved exemption who are not immunized or who violate any of the protocol requirements have the choice of resigning or being terminated.

The lawsuit seeks to enjoin AnMed from implementing or enforcing its Influenza Immunization Protocol, alleging that the Protocol violates South Carolina’s public policy and Article 1, §10 of  the state Constitution, which prohibits “unreasonable invasions of privacy.” AnMed issued a statement noting that thousands of Americans die as a result of the flu and flu-related illnesses, and that the immunization policy was issued in an effort to “reduce the risk of infection and in turn help save the lives of those we care for and those we care about.”

The AnMed lawsuit is similar to cases filed last fall, at the beginning of flu season, challenging flu vaccination requirements for healthcare employees. As discussed in Littler’s October 2009 publication, “Planning for a Pandemic: The EEOC Issues Guidance,” a number of lawsuits were filed against New York state when it issued a regulation requiring most health care workers who come in contact with patients to be vaccinated for both seasonal and swine flu by no later than November 30, 2009. On October 16, 2009, a lower court judge issued a temporary restraining order in one of the lawsuits, delaying implementation of the regulation. Shortly before a hearing to determine whether the restraining order should be lifted, New York suspended the mandatory vaccination requirement because of a vaccine shortage.

Unionized healthcare workers also challenged flu immunization policies, claiming that implementing such policies without first negotiating them with the union violates the Labor-Management Relations (LMRA) Act. In October 2009, the Washington State Nurses Association (WSNA) filed suit in the U.S. District Court for the Western District of Washington, claiming that MultiCare Health System violated the LMRA by unilaterally issuing a flu vaccination policy for union nurses. Multicare’s policy required all employees, including nurses covered by WSNA contracts, to receive a flu vaccination or wear a paper mask when near patients. Employees who were vaccinated received special badges indicating they had been given flu shots. The union argued that using the badges to identify nurses who had not received vaccinations violated their privacy. The court refused to issue a preliminary injunction to prevent the hospital from enforcing the requirement.

In another case filed by WSNA in 2007, Washington State Nurses Association v. Virginia Mason Hospital, the Ninth Circuit Court of Appeals upheld an arbitrator's ruling that a hospital could not unilaterally implement a mandatory flu immunization program applicable to nurses and other employees covered by a collective bargaining agreement.

On the other hand, a number of professional medical organizations have strongly urged healthcare institutions to require mandatory flu vaccinations for healthcare workers. Most recently, the October 2010 edition of Pediatrics, the official journal of the American Academy of Pediatrics (AAP), features the AAP’s policy statement: “Recommendation for Mandatory Influenza Immunization of All Healthcare Personnel.” Thus, while healthcare employers may face claims as a result of a mandatory immunization, a healthcare employer that does not adopt adequate measures to prevent the spread of the influenza virus at work may also risk claims for failure to comply with its duty to provide a safe workplace under OSHA.

Even if businesses, such as healthcare employers, are permitted because of the high risk of exposure to require vaccinations, the mandate should be carefully applied.  In a hospital setting, for instance, the requirement could be limited to only those with direct patient contact. In addition, certain employees may need to be accommodated. For example, an employee with a medical condition preventing him or her from getting a flu vaccine, such as a severe allergy to eggs or an underlying medical condition that might be compromised by the flu vaccine, should be exempted from a vaccination requirement as a reasonable accommodation under the ADA. Similarly, to avoid the risk of claims for violating Title VII’s religious accommodation requirements, employers should consider providing an exemption from the flu vaccine mandate to employees who have sincerely held religious beliefs that prohibit receiving an influenza vaccination.

In light of these and other potential legal issues, including those that may arise in a unionized setting, healthcare employers that are considering a flu vaccination policy are well-advised to consult with legal counsel.

This entry was written by George O’Brien and Steve Biddle.

Photo credit: Biggishben