If you read any newspaper or watch any news on TV, you know it's once again flu season. The 2009 flu season centered on the arrival of the H1N1 virus, and the challenge to deliver new vaccines. 2010 brings a combo shot for seasonal flu and H1N1 and ample vaccine supplies. It's easy to forget about the flu and disease prvention, including simple steps such as handwashing
. There's also controversy over regulating how we stay healthy. How far can your employer go in preventing the flu and sickness?
Employers Take Action
Most of the mandatory vaccine policies are set up by healthcare employers, especially hospitals and doctors' offices. For example, in 2009, a hospital in Seattle, Washington made all workers, with a few exceptions, get vaccinated against H1N1 by November 30. Any worker who wasn't required to get the vaccine had to wear a surgical face mask.
Workers and staff at another Washington hospital filed a federal lawsuit against a similar rule. Two hospitals in Nevada were sued in federal court over rules making the H1N1 vaccine mandatory. There, unless the worker was excused, he had to wear a mask at all times. New York dropped mandatory vaccination rules when faced with a lawsuit and vaccine shortages.
It's easy to see a hospital's goal here (as well as practically any employer): Protect patients against catching viruses from infected workers, and keeping workers well while caring for infected patients. Many health, government, patient and doctor groups promote mandatory flu shots. While most employers don't mandate flu shots, they often encourage employees to get them.
Is It Legal, Though?
As a general rule, most employers may institute a mandatory vaccine policy, and fire workers for not complying. That's because most employment is at will. That means most employees can be fired for any reason at any time.
There are some exceptions, though. And they may come into play when it comes to mandatory vaccine policies:
- If you have an employment contract with your employer, your employer may be barred from forcing you take a vaccine
- A collective bargaining agreement (CBA) between an employer and a union may protect some employees. For example, the nurses and hospital staff in Washington and Nevada cases were union members. They claimed requiring them to wear a mask if they're excused from taking the vaccine was 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
Most employers take less drastic steps in combating these seasonal viruses. For example, easing attendance policies, increasing "sick time," encouraging ill workers to stay home, and allowing ill workers to work from home while sick are many ways employers can cut down on spreading sickness instead of forcing vaccinations.
It's Serious: Know What to Do, and Your Rights
It's recommended you wash your hands; keep your hands away from your eyes, nose, and mouth; and get the vaccine when it's available. Cleaning, personal hygiene, and using masks and gloves help avoid getting sick without vaccination risks.
If you choose not to take the vaccine, understand if and when your employer may force you to take it anyway. If you have any questions about your employer's policy, ask your human resources department 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's 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?