As in so many other situations, healthcare employers are faced with a number of differing and potentially conflicting government directives and public policy pressures when it comes to mandatory vaccination programs for their employees. On February 8, 2012, the Department of Health and Human Services' (HHS) National Vaccine Advisory Committee (NVAC) voted 12-2 to recommend that healthcare facilities failing to achieve a 90% flu-vaccination rate using voluntary approaches "strongly consider a policy of employer requirement for influenza vaccination." On the other hand, in its position statement to the NVAC, the Occupational Safety and Health Administration (OSHA) stated it “does not believe that there is sufficient evidence to meet the bar necessary to support mandatory vaccination programs.” The Equal Employment Opportunity Commission (EEOC) has also sounded a warning against mandatory flu vaccinations: “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” And, as we have previously discussed on this site, nurses unions have actively opposed mandatory flu vaccinations.

Weighing in on the side of HHS, hospitals, healthcare employers, and health advocates have generally favored mandatory flu vaccines. As the American Hospital Association (AHA) has emphasized, “Influenza is a highly contagious disease that can be spread before symptoms appear and results in about 150,000 hospital admissions and 24,000 deaths annually.” Accordingly, the AHA “supports mandatory patient safety policies that require either influenza vaccination or wearing a mask in the presence of patients across health care settings during flu season.” The American Academy of Pediatrics and the Society for Healthcare Epidemiology of America both support such programs.

The argument supporting the case for mandatory flu vaccinations for healthcare workers is compelling. The influenza immunization rate among healthcare workers hovered around 50% for about a decade before rising to 61.9% during the 2009-10 flu season and increasing to 63.5% during the 2010-11 flu season, according to HHS. In contrast to these relatively low percentages, in the healthcare facilities that require flu immunization as a condition of employment, HHS has reported that 98.1% of the healthcare workers receive the vaccination. HHS estimates that 13% of all healthcare facilities, mostly hospitals, require mandatory flu vaccinations.

Although OSHA has not supported mandatory vaccinations, the agency has reaffirmed its long held position that employers must offer vaccinations as part of infection control practices. As set forth in its Enforcement Procedures for High to Very High Occupational Exposure Risk to 2009 H1N1 Influenza, CPL CPL-02-02-075 (Nov 20, 2009), OSHA reserves the right to issue citations and penalties under its General Duty Clause for employers who fail to provide vaccinations. It is important to note that OSHA only regulates employee health and safety issues, and has no authority to address patient protection.

Similarly, while the EEOC’s technical assistance guidance, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, suggests that ADA-covered employers should consider encouraging employees to be vaccinated instead of mandating it, the guidance also suggests that a mandatory policy may be acceptable as long as it provides reasonable accommodations to employees who have a disability or sincerely held religious belief that would prevent them from receiving the vaccination.

Taking all of the above considerations into account, it is clear that while healthcare employers have legitimate business reasons for requiring flu vaccinations, any mandatory policy should be carefully crafted and applied. In a hospital setting, for example, 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, may need to be exempted from the vaccination requirement. When possible, other protective measures, such as the use of masks, should be considered as a reasonable accommodation. Similarly, to avoid the risk of claims under 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. Finally, where employees subject to the policy are represented by a union, careful consideration should be given to whether negotiation with the union before implementation is required or advisable.