ALERT: Mandatory Flu Shots NOT Recommended

The flu season is upon us and with all of the talk about the H1N1 virus or swine flu, some employers may be wondering if they should make the flu shot mandatory. After all, if the virus hits your workplace it could cause widespread illness which means decreased productivity and increased workload for those who remain healthy.

According to a recent article posted by SHRM, Steve Biddle, an attorney with Littler Mendelson in Phoenix was asked about whether employers should require employees to obtain the H1N1 vaccine. Biddle is quoted as saying, "employers generally should not require employees to get immunizations because of possible problems with the Americans with Disabilities Act (ADA) and other potential legal issues," he said. Biddle expanded on this by saying that if an employer requires flu vaccinations, it could be liable under workers' compensation statutes for adverse reactions to vaccines. Further, employers are cautioned about having medical treatment on-site due to privacy issues under the Health Insurance Portability and Accountability Act (HIPAA).

He did note an exception could be a requirement that health care workers with patient contact obtain the vaccine. He added that "if the situation becomes more severe than expected and employers are either being required to have their employees get vaccinated or are permitted to mandate it, employees should be paid for this because it arguably would be work time."

Another attorney, David Barron, with Epstein Becker & GreenBarron, noted that an employer can coordinate with its health insurance provider to discuss coverage of vaccinations. "This may encourage more employees to get vaccinated if they know they will pay little or nothing out of pocket." Employers can educate employees on how to prevent the spread of the flu by increasing the availability of hygiene products and encouraging constant washing of hands.

"Employers should also maintain an open-door policy, where they encourage employees to come forward and share with them whether they are experiencing flu-like symptoms." Barron said that beyond just being good ideas, these types of basic steps are likely required under the Occupational Safety and Health Act's general duty clause. This clause, he reminded, "requires employers to take reasonable steps to protect employees from known work hazards."

This is a hot topic of discussion and was just discussed yesterday on Talk of the Nation For more resources and information about the H1N1 flu visit the Center for Disease Control's website
Should you have additional questions on this topic we encourage clients to speak with their employment attorney for advice.