If you read any newspaper or watch any news on TV, you don't need to be told that the H1N1 virus, or "swine" flu, poses a serious health risk to practically everyone in the US and abroad. It's causing other problems for some US employers, too. For a variety of reasons, like the fear of a dwindling workforce and the inability to meet demands for its goods or services, some employers - like hospitals in Washington and Nevada - are forcing their employees to take the H1N1 vaccine.

Employers Take Action

Most of the mandatory vaccine policies have been set up by healthcare employers, and particularly hospitals. For example, a hospital in Seattle, Washington made it mandatory for all workers, with a few exceptions, to get vaccinated against H1N1 by November 30, 2009. Any worker who isn't required to get the vaccine must wear a surgical face mask. Workers and staff at another Washington hospital have filed a federal lawsuit against a similar rule being proposed by the hospital.
 
Similarly, two hospitals in Nevada have been sued in federal court over rules that make the H1N1 vaccine mandatory, and unless the worker is excused, he must wear a mask at all times. Similar cases have been reported in California and New York hospitals, and mandatory vaccine rules have been proposed or instituted in other healthcare related fields, like clinics.

It's easy to see a hospital's goal here (as well as practically any employer): Protect patients without H1N1 from catching it from infected workers, and prevent well workers from contracting the virus from infected patients.

Is It Legal, Though?

As a general rule, most employers may institute a mandatory vaccine policy, and fire workers for not complying with the rule. That's because most employment is "at will," which means most employees can be fired for any reason at any time. There some exceptions, though, which come into play when it comes to mandatory vaccine policies:

• If you have an employment contract with your employer, it may prevent an employer from forcing you take the vaccination
• A collective bargaining agreement (CBA) between the employees and a union may protect some employees. For example, in the recent Washington and Nevada cases, nurses and other hospital staffers who are union members claim that requiring them to wear a mask if they're excused from taking the vaccine is a change in the terms and conditions of their employment. Under the CBA, the employers can't make the rule without the approval of the union and its members
• Anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), may make it illegal. For example, if an employee's religious beliefs and practices prevent her from taking vaccines and other medications, she typically can't be forced to take it and can't be fired for refusing to do so

Most employers have less drastic policies to help combat the H1N1 virus. For example, easing attendance policies, increasing "sick time," encouraging ill workers to stay home, and allowing ill workers to work from home temporarily are popular methods being used by many employers instead of forced vaccinations.

It's Serious: Know What to Do, and Your Rights

H1N1 has killed thousands of people in the US so far. President Obama recently declared a national emergency over the virus. You should take precautions.

It's recommended that you wash your hands; keep your hands away from your eyes, nose, and mouth; and get the vaccine when it's available. If you choose not to take the vaccine, understand if and when your employer may force you take it anyway. If you have any questions about your employer's policy, ask the human resources professional about it. If you still have questions, contact an attorney immediately.

Questions for Your Attorney

• Can my child's school require her to take the vaccine?
• My employee handbook doesn't say anything about my employer have the right to force me to take a vaccine. Isn't that enough to fight its proposed mandatory vaccine rule?
• My employer doesn't give me any health benefits. Can it require me to take the vaccine and make me pay for it?

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Related Web Links

- H1N1-Swine Flu Information from the Centers of Disease Control and Prevention (CDC)
- Flu.gov