Compliance Perspectives: Can You Require Lab Workers to Get a Flu Shot?

Bottom Line on Top: Yes, a mandatory flu vaccination policy is legally justifiable as long as:

1. You can show that vaccination is a necessary health and safety measure;

2. The policy doesn’t violate the contractual rights of affected lab workers;

3. The policy doesn’t discriminate on the basis of religion, disability or other grounds protected by EEO laws; and

4. You don’t violate workers’ OSHA whistleblower protections.

But also keep in mind that even if it’s legally defensible, implementing a mandatory vaccination policy may also be quite risky.

General Rule: Mandatory Vaccination Is Justifiable
In general, employers have broad authority to adopt policies to police the workplace and deal with health and safety hazards. In the context of labs and other healthcare facilities, such policies may also be justifiable to protect not just worker but public health and safety. Moreover, because most employment is “at will,” workers can be fired for disobeying these policies.

OSHA’s Policy on Mandatory Flu Vaccination
OSHA has also given mandatory flu vaccination the green light. No OSHA standard specifically addresses the subject. But OSHA guidelines on influenza preparedness for healthcare facility employers say it’s “advisable” for such facilities to “encourage and/or provide seasonal influenza vaccination for their staff, including volunteers, yearly, during October and November.”

Admittedly, this language is pretty wishy-washy. But an OSHA Interpretation Letter from 2009 (during the influenza pandemic) not only reiterates the “encouragement” line but also adds the following: “Although OSHA does not specifically require employees to take [seasonal and H1N1] vaccines, an employer may do so.” Significantly, the Letter specifically addresses healthcare facility employers [OSHA Interpretation Letter, Nov. 9, 2009].

3 Situations When Mandatory Vaccination Is Not Okay
You need to take all this with a grain of salt. After all, OSHA guidelines and Interpretation Letters are not laws. More importantly, you also need to realize that OSHA is not the sole arbiter and that mandatory vaccinations are illegal if they run afoul of other employer legal obligations. Examples:

1. Violation of Employment Contract
Forcing workers to get vaccinated could violate the terms of the employment contract—or collective bargaining agreement (CBA) if the workers belong to a union.

Example: A Washington hospital requires employees to get a flu vaccination to be considered “fit for duty.” Nurses sue and the court rules that unilaterally implementing the policy violates the hospital’s CBA duty to collectively bargain all employment terms and conditions [Virginia Mason Hospital v. Washington State Nurses].

2. Religious or Disability Discrimination
Mandatory vaccination might also violate employment discrimination laws. According to EEOC guidance, forcing a worker to get vaccinated might violate his/her “sincerely held religious belief, practice or observance;” the Americans with Disabilities Act would also kick in if the worker has a disability that prevents him from taking the vaccine. In either case, exempting the worker from the policy might be one of the “reasonable accommodations” you’d have to make to accommodate the worker’s religion/disability.

3. OSHA Whistleblower Discrimination
Section 11(c) of the Occupational Safety & Health Act makes it illegal to “discharge or in any manner discriminate against” a worker for filing a safety complaint or exercising other rights under the OSHA law. As noted by OSHA in the 2009 Interpretation Letter mentioned above, firing a worker for defying a mandatory vaccination policy could violate the whistleblower protections of Sec. 11(c) if the worker’s refusal is based on a “reasonable belief” that he has a medical condition, e.g., an allergy, that could result in serious injury or death if he gets the shot.

How to Manage Liability Risks
Vaccination is clearly one of the best ways to prevent outbreak of flu and other infectious illnesses at your lab. But requiring lab workers to be vaccinated and disciplining them if they refuse is fraught with legal risks. A better option may be to encourage workers to get shots without ordering them to do so. Some of the things you can do to get your workers to agree to vaccination voluntarily:

• Provide the vaccination yourself at no cost to workers;
• cinate workers right on the worksite and at convenient times; and
• Educate workers about the benefits of the vaccination and address any concerns they raise about its safety.

For More Help
Click here for Model Policies you can use to implement either a mandatory or voluntary vaccination policy at your lab.