Requiring Flu Shots: How Far Can I Go To Protect Patients?

By David Briggs
SAALFELD GRIGGS PC

Many practices remember 2009’s H1N1 “swine” flu outbreak. Nationally, it was the turning point for many employers, as many began requiring employees to receive annual flu shots. In light of a national push to immunize employees, especially in the healthcare community, we frequently get questions at this time of year: My practice works with vulnerable populations and I want to require my staff to get flu shots. I have a few employees that are refusing to get one. Can I require them to get a flu shot?

Surprisingly (especially considering that it is coming from a lawyer), the answer is simple. You cannot force employees to get a flu shot. Oregon has a statute that prohibits employers from requiring immunization as a condition of work, unless that immunization is required by federal law. That law is in stark contrast to at least six states that have passed laws that require healthcare personnel to obtain flu shots since 2009.

So, what does federal law say? The CDC (among many other federal and state agencies) recommends that healthcare personnel (and the public in general) obtain flu shots. But, after debating whether healthcare employers should be allowed to require it, the CDC decided against granting such authority to practices.

Since practices cannot require staff to get flu shots, what strategies are left to encourage your staff to get flu shots? Some practices and hospitals require that staff who have patient interaction or access to certain areas of the building to wear a surgical mask. That way, potentially contagious employees are less likely to be able to infect unsuspecting and perhaps vulnerable patients, Of course, practices should not retaliate against employees for refusing to get a flu shot. Instead, you should carefully review the practice’s goals (such as protecting patients from contracting the flu) and set policies aimed at meeting that goal (like requiring certain employees to get a flu shot or wear a mask). In determining who the policy will apply to, practices should consider:

How many of your patients are in a vulnerable population?
Which employees have interaction with patients?
Which employees are in areas accessible to patients?
Are staff members who do not have patient contact still in positions where they are requires to interact with supplies or equipment that patients are exposed to?

Some employee-rights focused groups have complained that requiring employees to where a mask when they refuse to get a flu shot is retaliatory. In essence, the employees feel that the mask it tantamount to having to wear a scarlet “A” on their chests, calling them out as potentially contagious or dirty. However, such objections lack much merit when the requirement is set in order to meet legitimate goals and those policies are consistently enforced.

In encouraging staff to get their flu shots, practices can consider other techniques. For example, you can also create an educational program. One resource is the CDC’s website aimed at encouraging healthcare personnel to get a flu shot (http://www.cdc.gov/flu/healthcareworkers.htm).

Another method of encouraging staff to get their flu shot would be to offer incentives (monetary or otherwise) to staff that participate. Although this is an effective mechanism, any employer who offers incentives for health-related behaviors to their staff is sponsoring a group wellness program. Wellness programs must be carefully structured to comply with both state and federal laws as they raise issues regarding reasonable accommodation, nondiscrimination and confidentiality.

If you need help with any of these issues, please contact David Briggs (dbriggs@sglaw.com) at Saalfeld Griggs.