Legal Considerations for Hospitals' Mandatory Employee Flu Shot Policies

As the nation enters flu season, keeping employees and patients safe from infection becomes important for hospitals and health systems. The Centers for Disease Control and Prevention recommends hospitals actively encourage employees to get a flu shot, according to an article in The National Law Review.

Several hospitals have taken it a step further and instituted mandatory flu shot policies for their employees, some of which allow hospitals to discipline or fire employees who refuse. According to Mark D. Nelson, a partner in the Labor and Employment Practice Group of Drinker Biddle & Reath and author of the article, there are several things hospitals should consider before instituting such a program.

For example, under the National Labor Relations Act, a flu shot policy falls under the mandatory subject of bargaining title, meaning in most circumstances hospitals with unions cannot simply put this policy in place. They must first give notice to the union(s) and allow bargaining to occur, according to the article.

Beyond NLRB laws, hospitals could be subject to discrimination claims if they do not include exceptions to the policy. According to the report, the Equal Employment Opportunity Commission recommends offering exceptions to employees who have a disability that prevents them from receiving the vaccine as well as to employees who have a religious belief, practice or observance that prevents them from getting the flu shot.

If an employee does refuse to get vaccinated and falls under the exceptions, hospitals can consider having the employee wear a mask during flu season or moving the employee to another position temporarily. "From my experience as a hospital board chairman, this approach presents a balancing of the hospital's interest in protecting patients from flu exposure while protecting the legal rights of certain employees who decline to get vaccinated," Mr. Nelson wrote.

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