Can workers be forced to get flu shots?

Q Can my
employer demand that I get the H1N1 vaccine? Could I be fired if I

A The prospect of
mandatory vaccination for H1N1 flu has raised interesting questions
about how far the government or employers can go in requiring proof of
vaccination. Some individuals balk at vaccination for personal,
religious, or conscience reasons. Others are concerned that the
complications associated with the vaccine may be significant enough to
warrant caution, remembering the epidemic of Guillain-Barr’e syndrome
that followed inoculations for swine flu in 1976. Still others simply do
not like being required to take a vaccination when the seriousness of
the illness or the anticipated pandemic is not certain.

In general, public-health concerns are the purview of
the state governments. As a result, to give an overall answer to the
question posed is difficult because state laws vary. A few general
principles apply, however; and an understanding of them can help frame the
questions that, ultimately, will clarify an individual’s rights and options.
In the end, check with a local attorney to be sure.

The role of state government in controlling
epidemics traces back to the turn of the last century, in a case that
tested the right of a state to institute a mandatory smallpox
vaccination program. Arguments that the vaccination program contravened
individual rights fell on deaf ears: the state was found to have a
compelling interest in protecting public health and safety. That basic
principle has not been altered, and remains the basis for mandatory
vaccination programs.

Over the years, states have passed exemptions to
the mandatory vaccination programs, and they differ. The most common
exemptions are for medical and religious objections, but philosophical
or moral objections also provide a basis for exemption in several
states. All states include exemptions for individuals to whom
vaccination poses a health risk. A few states allow refusal of
vaccinations if the risks and benefits are understood — but these are
relatively uncommon provisions.

States maintain the right to institute
vaccination programs in emergency situations and to quarantine either
infectious or unvaccinated persons for the public good. These laws have
been upheld, underscoring the states’ rights to exercise control in
health emergencies, but they also contain exemptions similar to those in
other mandatory vaccination laws.

State laws come into play only when state
regulations are involved in the employer’s decision or when a
public-health emergency has been declared. A declared emergency in your
state at present is unlikely, so first inquire whether the basis of the
mandate from your employer is a state regulation. Some states, including
New York, have instituted such policies. An applicable conscience
provision may exist; but if not, non-compliance can result in the loss
of a job or license.

Employers also retain the ability to mandate
vaccination as a condition of employment absent a contractual agreement
to the contrary or state law inhibiting the rights of employers to make
such demands on employees. Unionized employees are protected if the
mandatory vaccination program includes a provision that non-compliant
employees will be terminated, because conditions of employment must be
the subject of collective bargaining.

If there is no collective bargaining agreement,
employers can impose additional conditions of employment. Because
vaccination relates directly to job safety and to the health of
patients, employers are free to require compliance with reasonable
policies designed to enhance workplace safety and job efficiency.
Vaccination to prevent the transmission of illness falls into that
category. Employers also can prohibit employees who show signs of
illness from working due to the risk they pose to co-workers and
patients. Whether there are opt-out provisions under these circumstances
depends on a combination of state laws and employment-contract
provisions, including those in the relevant employee handbook, which, of
course, deviate from employer to employer.

The burden an employer would bear is not clearly
established in the event an employee, forced to take a vaccination or
lose his job, developed a significant complication from the vaccine. If
it could be demonstrated that the employer persisted in the absence of a
state mandate for vaccination, despite demonstrated evidence that the
vaccine might pose a significant and foreseeable risk, the employer
could be liable. Individuals protesting mandatory vaccination should do
so clearly, articulately, in writing, and with as much medical evidence
to support his position as possible, in order to support a future cause
of action. Get the basis for the policy in writing to determine if it is
employer choice or state mandate ordering vaccination.

In New York, which has perhaps the most expansive
mandatory vaccination provisions, nurses and emergency responders have
protested the mandatory H1N1 vaccination program instituted by the
state, but at the time of writing, to no effect.

Barbara Harty-Golder is a pathologist-attorney
consultant in Chattanooga, TN. She maintains a law practice with a
special interest in medical law. She writes and lectures extensively on
healthcare law, risk management, and human resource management.

MLO’s “Liability and the Lab”is intended
to provide risk management and human resource management education; it
is not intended to provide specific legal advice. If you require legal
advice, the services of an attorney should be sought. Dr. Harty-Golder
welcomes your questions, which can be sent to her at
[email protected]
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