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By November 1, 2009No Comments

The HR That Works Hotline has been getting inquiries about managing H1N1, especially from health care providers. The answer to this question should help all employers:

Hi Don, I have a unique situation. I don’t want to implement a policy that requires flu shots for all employees. We have contracts with hospitals that are requiring all employees to have a flu shot and/or wear a mask. I’m looking for advice on writing a policy for those specific employees.

Answer: There are no hard and fast answers on this issue because it’s so new, with lawsuits being filed, legislation enacted, etc. especially in the health care field. For example, here’s a thread on a discussion board for nurses. The NIOSH discusses the issue here. In general, employers can order employees to obtain flu shots or reasonable alternatives if they are medical or health care providers (nursing homes, child care workers, home health care providers, and so forth). There might be exceptions if such procedures are contrary to a person’s religious or cultural beliefs or would present a unique risk to the individual’s health.

The CDC has published excellent information for employers. So has the World Health Organization. However, these two sites don’t see eye to eye – in general, the CDC is more pro-vaccine.

Many states have also issued H1N1 Guidelines. For California, go to H1N1 (Swine Flu) Guidance for Employers and Employees, Cal/OSHA Interim Enforcement Policy on H1N1, Section 5199 (Aerosol Transmissible Diseases), and Appendix A: Respiratory Supply Documentation. For New York, please click here.

Unions and employees have been filing lawsuits to both mandate and prevent flu shots – which means there are risks on both sides of the issue. Not requiring vaccination might also expose you to the risk of losing a contract. Requiring it may result in fighting an employment lawsuit for wrongful termination. Suppose an employee has a negative reaction to the vaccine and gets sick or dies. You can expect a work comp claim, request for ADA or FMLA leave or worse. In fact, even state legislatures aren’t sure what to do about the issue.

So what to do?

  • Educate yourself and your employees about the virus by referring them to the CDC and WHO sites. Take the disease seriously: Experience suggests that it might be even more deadly than originally predicted.
  • Get a comprehensive legal opinion if you’re concerned about how to manage employees who refuse the vaccine (remember in your situation they can still wear a mask as an alternative). There’s no “generic” policy I could suggest. Please contact the firm in your area so they can help tailor a policy to your specific needs.
  • Refer to the NIOSH site and incorporate the best practices discussed there. Be sure to include provisions for any possible exceptions (religious, health, etc.).
  • Look for the least intrusive alternatives. If workers won’t take a shot or wear a mask for a legitimate reason, perhaps they can be reassigned to accommodate their concerns. Get employees involved in this thought process because it affects them.
  • Work with vendors and regulators to establish reasonable guidelines and commitments.
  • Follow common sense prevention strategies, such as washing hands frequently, or gargling with salt water or Listerine regularly. Stress a “hands-off-the-face” approach: Resist all temptations to touch any part of the face (unless you want to eat or bathe). Don’t come to work sick, etc.
  • Create a plan for managing employees concerned about being infected – for example, recommending that they contact a doctor.