Can Employers Make the Flu Vaccine Mandatory?

We’ve seen this question in the headlines, mostly in relation to nurses and other healthcare workers.  Actually, the better question is whether or not an employer can lawfully require employees to be vaccinated against the flu as a legitimate condition of employment?

Several healthcare facilities have terminated nurses and other healthcare workers for refusing to be vaccinated against the H1N1 flu. While there are no known legal cases that have conclusively ruled on the legality of the terminations, the answers to legal aspects of questions like this are never absolute.

Legal Factors

Before making the flu vaccine mandatory in your company, you should consider a host of legal factors, which include, among many others, the following:

• Is there controlling state law?
• Is the employer a private entity or a governmental agency?
• Are we in a “right to work” state?
• Is the issue addressed in a collective bargaining agreement?
• Does the employer have a legitimate safety or health interest in making the flu vaccine mandatory?
• Does the vaccination unlawfully discriminate against those with religious objections?

Practical Factors

Of course, the list of possible legal factors goes on and on. Maybe even more important, however, are the numerous practical factors that must also be considered before making the flu vaccine mandatory.

• What are the real risks to patients and clients if employees are not vaccinated?
• What are the liability concerns?
• How would mandatory vaccinations affect the morale and effectiveness of employees?
• What are the possible health risks to employees who might be required to get vaccinated?
• How would mandatory vaccinations or the lack of vaccinations affect public relations?

Can I Fire An Employee for Refusing?

There is no simple answer. For those employers in the healthcare field where this question is most likely to arise, the best advice is to proceed with caution and thoroughly investigate all related issues before implementing any policy relating to mandatory vaccination of employees and termination of employees who refuse.

Of course, before taking any action regarding vaccination as a condition of employment, don’t forget to seek the advice of legal counsel.