Get the Shot or Get Out! Factors to Consider When Implementing a Vaccination Policy

It’s that time of year again—we’re catching colds, fighting the flu and suffering through sinus pain.

But for some, the sniffles are the least of their worries! Many large-scale employers, particularly those in the medical field, are starting to require flu vaccinations for their employees. This article will take a brief look at the reasoning behind such mandates and the potential pit-falls for employers seeking to enforce them.

In a 2013 position statement, the American College of Physicians (ACP) said: “Proper immunization safely and effectively prevents a significant number of infections, hospitalizations, and deaths among patients as well as preventing workplace disruption and medical errors by absent workers due to illness.” In that same release, the ACP reported that only 39 percent of adults received the flu vaccine during the 2011-12 season. While numbers have increased somewhat over the last few years (up to 59.3% coverage for children and 43.6% coverage for adults 18+), the CDC and other health organizations remain concerned about the influenza outbreaks occurring nearly every year. With more than 50% of the adult population choosing to skip the shot, some medical field employers are turning to mandatory policies.

Essentia Health, based out of Duluth, Minnesota, made national news in November when it fired approximately fifty employees for failure to obtain an influenza vaccination by the cutoff date of November 10, 2017. This mass firing was the result of a new policy, implemented this year, aimed at increasing the percentage of Essentia employees receiving the vaccine. Only a handful of Minnesota healthcare providers had mandatory programs in 2016, but this movement is not unique to the Land of 10,000 Lakes.

More than 600 health care providers nationwide have an influenza vaccination mandate, according to the Immunization Action Council, an advocacy group based in St. Paul. They include Johns Hopkins Health System in Maryland and South Dakota-based Sanford Health, which has several hospitals and clinics in Minnesota and North Dakota. Some states, including Colorado, New Hampshire and Alabama, have even gone so far as to codify the requirement.

On a local level, neither Nebraska, nor Iowa, nor South Dakota require healthcare employees to get the influenza vaccination. So should your tri-state area business begin requiring its employees to get vaccinated? There are of course several factors to consider when making the decision.

Factors in favor of a vaccination policy include:

• Exposure to the Illness: If your employees are in frequent contact with John Q. Public, particularly with children or the elderly, it may be advisable for them to receive the shot. This could easily pertain to daycares, retail service providers, and banks.
• Time-Sensitive Nature of the Work: Influenza is highly contagious and can easily wipe out a workforce. If your product or service requires all hands on deck, you may want to consider a policy encouraging employees to vaccinate.

However, there are some major potential pit-falls you should consider before revising your employee handbook:

• Beware the Chopping Block: Oftentimes in employment situations, it is best to implement a graduated warning system rather than a cut and dry “you’re fired.” Giving employees an opportunity to air grievances and take responsive action provides the requisite due process.
• Disparate Impact: While requiring all employees across the board to get a flu shot avoids any blatant religious discrimination, it is very possible that certain religions would be disparately impacted by such a requirement. Though employers are only required to accommodate religious exemptions under Title VII if the religious belief is “sincerely held,” it is a very uncomfortable position indeed to be the one deciding which religious exemption requests are “good enough.”
• It Only Takes One: Though the flu shot carries a very small risk of severe adverse reaction, if an employee receives the shot in compliance with an employer requirement and has a severe reaction or is allergic to the shot, it is possible the employer could be held liable for any damages suffered.
• “Zones” of Enforcement: Perhaps a more reasonable requirement would be for those on the front line of public contact—the doctors, salespersons, and bankers—to get the shot. Allow those workers in office environments or, particularly, those that work from home, to skip it.

Considering implementing a required flu shot policy at your workplace in Sioux City, Sioux Falls or Omaha? Give the attorneys at Goosmann Law Firm a call. A simple review of the proposed policy could save your business a lot of stress down the road!

For more information, see the following links:

https://www2a.cdc.gov/vaccines/statevaccsApp/AdministrationbyVaccine.asp?Vaccinetmp=Influenza#505

http://www.grandrapidsmn.com/free_press/essentia-health-says-mandatory-flu-shot-policy-for-workers-a/article_773db0be-cfa0-11e7-abbc-c3fbe4e83ea7.html

If you have any questions after reading this blog, please contact one of our Sioux City attorneys, Sioux Falls attorneys, or Omaha attorneys to clarify. For more content like the information in this blog, check out our HR Legal Insider blog!