Don’t Let Vaccinations Make You Sick

The flu season brings additional challenges to hospitals and other health care providers, as they experience an increase in volume of patients who have the flu or flu-related symptoms or who are at higher risk of serious complications from the flu. Health care providers have implemented flu vaccination polices to protect vulnerable patients as well as employees and their families. However, flu vaccination policies can create a legal risk for health care providers, particularly when those policies mandate vaccination for employees.

A Sample Case

In a recent case, the U.S. Equal Employment Opportunity Commission (EEOC) represented three employees who claimed they were terminated for failing to get vaccinated, as they claimed being vaccinated violates their religious beliefs in violation of Title VII of the Civil Rights Act. The court, when denying the employer hospital’s motion for summary judgment, held that the hospital had not shown that it had reasonably accommodated the employees’ religious objections to vaccination or that a reasonable accommodation would have caused an undue hardship for the hospital. On the other hand, the court ruled, the EEOC had not proven the opposite.

In April 2016, the EEOC sued the hospital, alleging it fired at least three employees whose sincerely held religious beliefs forbade them from getting flu shots—the hospital’s policy mandated flu vaccination for employees unless they were granted an exception. The hospital argued that the employees were fired because they missed the hospital’s dead line to request an exemption from the policy. The judge observed that the hospital had granted approximately 75% of employees’ exemption requests over several preceding years and a jury should decide whether allowing employees to file exemption requests beyond the policy’s deadline was a reasonable accommodation. According to the judge, a jury should also decide whether exempting employees who work with “vulnerable [patient] populations” from the vaccination policy would “increase costs to the hospital.” A jury would also need to determine whether the employees held sincere religious beliefs that prohibited them from getting a flu shot.

Minimizing Risk

Mandatory flu vaccination policies can also create legal issues when an employee’s health status could be compromised or harmed if vaccinated. Flu vaccinations can present a serious health risk to an employee with a history of severe reaction to flu vaccines or an ingredient in the vaccine, or has or may have Guillian-Barre syndrome. Health providers with mandatory vaccination policies will inevitably face the question: What do we do when an employee refuses to be vaccinated?

To minimize risk, the health care employer should engage in an interactive dialog with the employee to identify the basis for the refusal and potential accommodations. Many hospitals have allowed an employee to continue to work without vaccination provided the employee wears a mask. Other potential accommodations include transfer ing the employee to a position with no patient contact or no contact with flu-vulnerable patients, or providing the employee with a leave of absence. Drafting an effective and lawful policy, and consistent application of the policy, are essential to minimizing the legal risks when mandating that employees be vaccinated.

Mark Nelson, Esq. practices at the Chicago office of the law firm Polsinelli. Contact him at mnelson@polsinelli.com. Polsinelli is an Am Law 100 firm with approximately 800 attorneys in 20 offices.

CMS to Debate Flu Vaccination Policies

The Chicago Medical Society will be considering a member resolution that calls for ISMS and AMA policy that prohibits mandatory influenza vaccination policies for health care workers unless OSHA guidelines and informed consent principles are strictly followed without any adverse actions to those employees who decline the influenza vaccination based on religious, ethical, medical, or principled reasons without medical center representatives overruling such declinations.

Additionally, the resolution urges ISMS to support or introduce legislation that mirrors the ISMS policy. Finally, the resolution directs ISMS to contact the Illinois Hospital Association to prohibit mandatory influenza vaccination policies of health care workers unless OSHA guidelines and informed consent principles are strictly followed. Committee recommendations will be debated on Nov. 6 at the CMS Council meeting.