Mandatory flu shot policies can be a boon in the annual battle to get employees immunized, but they can be challenging to put into place. There are legal and employee relations steps to navigate before implementing such a policy.
Mission Health System, an Asheville, N.C.-based hospital system, recently fired three employees for failing to get flu shots. Mission is one of a growing number of health care employers mandating flu vaccines for employees. Beginning Dec. 1, 2010, all medical staff and employees at Mission without a medical or religious exemption were required to have the shot or face discipline or termination.
“We wanted to ensure that our patients first and foremost were safe,” said Sheila Meadows, director of human resources for Mission. “We also felt we had a responsibility to the other staff members.”
The program was rolled out a year in advance to give employees time to prepare. Of an estimated 7,000 employees, just over 100 claimed religious or medical exemptions—such as an allergy to the flu vaccine or a religious belief or practice that prevents them from getting vaccines.
This Year's Flu Season
The federal Centers for Disease Control and Prevention (CDC) recommends that everyone aged six months and older get a flu shot annually. That’s because each year’s vaccine is designed to protect against the three strains of influenza thought to be most common that particular year.
CDC spokesman Tom Skinner said the CDC doesn’t have a position on mandating flu vaccines but added, “We do recommend that health care workers be vaccinated as a way to protect themselves against influenza as well as a way to protect against spreading flu to their patients.”
The 2011 flu season was starting to pick up in parts of the country in early 2011, Skinner said.
“There is plenty of vaccine out there,” and it is not too late to get vaccinated, he added in January 2011.
Reaction Was Mixed Bag
Meadows, past president of the Western North Carolina Human Resource Association, said reaction from Mission employees to the policy ran the gamut.
“Some people were adamant that everyone should have the flu vaccine, and others were just as adamant that it was a violation of their rights as an employee,” she said.
In many cases, it’s not illegal for employers to require employees to submit to flu vaccinations or risk being fired, said Richard B. Wagner, a Chicago-based health care attorney and managing director of Wagner Healthcare Consulting, which advises employers and providers on regulatory compliance issues.
That’s because in states that recognize at-will employment, “employers are allowed to place any requirement as a condition for employment as long as it is not gender- or race-related,” Wagner said. An exception occurs “when the employees are unionized and have a collective bargaining agreement,” Wagner added.
Resourceful employers aren’t without options. Instead of drawing up a mandate, employers can offer an incentive: a free lunch, a free month of gym membership or some other inducement.
“If employer wellness programs have taught us anything over the last decade, it’s that employees generally respond well to incentives,” Wagner said.
But that method didn’t work well at Mission. Meadows said that, in recent years, on average, only about two-thirds of employees receive the flu shot annually, “even with tons of encouragement, marketing and free vaccines for staff.”
Vaccination rates among health care workers have not topped 49 percent in the past several years, according to the CDC.
What About Lifestyle Factors?
One factor that made it tough for Mission was that Asheville is a city known for its alternative lifestyle. Meadows said some employees tried to claim “lifestyle exemptions” and cited things like “being an herbalist, not wanting medical intervention, being a vegetarian or the belief that the vaccine is bad for you.” In most cases, the issues did not constitute religious exemptions, and those requests were denied.
“We set up a team with legal and medical professionals along with individuals from the chaplaincy to review requests to be exempted,” said attorney Jonathan W. Yarbrough, partner in the Asheville office of national employment and labor law firm Constangy, Brooks & Smith who worked with Mission’s in-house legal counsel, HR and others to address legal issues surrounding the mandate. “Exemptions were granted for medical reasons under the Americans with Disabilities Act and for religious reasons due to Title VII of the Civil Rights Act.”
Employees had until Dec. 1, 2010, to get the shot. Fourteen employees were suspended without pay and had two weeks to get the shot or “to decide what they wanted to do,” Meadows said. Of the 14, 11 decided to get the shot and remain employed. Three employees were fired.
Meadows said about 91 employees had valid religious exemptions and fewer than 20 had valid medical exemptions. They were allowed to wear personal protective equipment such as masks. Hospital volunteers had the option of skipping the shot for the 2010-11 flu season, but only if they agreed not to volunteer during flu season, Meadows added.
What They Learned
Meadows offered this advice for anyone considering a policy mandating flu shots:
- Work closely with your infection control department. Find out what the CDC guidelines are and “get your information together about why it’s important to your organization,” Meadows said. Educate managers and leaders in your organization so that “everybody is speaking in one voice about the importance of vaccinations.”
- Likewise, work closely with legal counsel to get guidance “on what to avoid and some potential pitfalls,” Meadows said.
- Think through what such a policy “will look like in reality,” she said. “And be cautious about your timelines.”
- Decide ahead of time who will address exemptions.
- “Clearly outline the parameters for religious exemptions—what qualifies, what doesn’t,” Meadows said. “We had a chaplaincy group work with us on that. But it’s not as easy as it sounds.”
- Decide if there will be an appeals process and have “very clear, standardized communication back to employees,” she said.
Pamela Babcock is a freelance writer based in the New York City area.
The Immunization Action Coalition’s Honor Roll for Patient Safety: A list of nearly 100 institutions that have mandatory influenza vaccination policies for health care workers.
EEOC’s “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.”
CDC Report: Interim Results: Influenza A (H1N1) 2009 Monovalent and Seasonal Influenza Vaccination Coverage Among Health-Care Personnel -- United States, August 2009--January 2010, published April 2, 2010: A report on the influenza vaccination rates among health care workers in the U.S.