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 refuse?

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-Barre 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 responded have protested the mandatory H1N1 vaccination program instituted by the state, but at the time of writing, to no effect.

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 [e-mail]. Unless otherwise noted as "confidential" by readers, all queries will be considered for publication without further notice to them. Names, institution, city, and state will be removed before publication.

By Barbara Harty-Golder, MD, JD

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.

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