Nurse attorney Nancy Brent, MS, JD, RN, addresses a nurse’s question about the legalities behind her employer’s mandatory flu shot policies.

Question:

Dear Nancy,

My hospital is making the flu shot mandatory for all healthcare providers. If we refuse to get the immunization, we must wear masks all the time at work. We can be terminated if we refuse to wear the mask. Is this legal?

Bella

Nancy replies:

Dear Bella,

Employers mandating annual flu shots for healthcare providers is always a controversial issue. The reasons for the requirement include an employer’s duty to provide a safe and healthy workplace for employees and patients and to protect itself from liability, should a healthcare worker infect a patient with the flu. Clearly, too, healthcare providers have a duty to make sure they are as protected as much as possible from the influenza virus in order to protect patients and their fellow employees.

Some states have passed laws requiring hospitals to make flu vaccines available, including University Hospitals in Iowa (employees can refuse) and Allen Hospital in Iowa, where the shots are mandatory unless a medical condition (e.g. allergies) contraindicates the vaccine. These employees need a healthcare provider note documenting the reason for not taking the vaccine.

Several employers are requiring their employees to get a flu shot. In Seattle, Virginia Mason Medical Center requires all employees, vendors, and volunteers to be vaccinated unless their refusal is based on medical or religious reasons.

Those who refuse the vaccination must wear masks in the hospital during the flu season.

In contrast, New York State’s edict in 2009 from the health department requiring all employees to receive seasonal flu shots (including, in this case, the H1N1 vaccine) was halted when a New York State Supreme Court Judge issued a temporary restraining order halting the mandated vaccinations. For now, flu vaccinations are recommended, not required, but those who are not vaccinated must wear surgical masks.

Utilizing masks for those who do not take a flu vaccine, mandatory or voluntary, is controversial as well, including whether the use of a surgical mask is sufficient or if a respirator mask is more protective.

The U.S. Centers for Disease Control and Prevention and the Occupational Safety and Health Administration also have presented their opinions on specific masks and their use.

In short, what is “legal” concerning annual flu vaccinations and the requirement of wearing masks is a question best answered by a nurse attorney or attorney in your state who can advise you of your specific employee rights and obligations. Seeking the consultation at your earliest convenience is a wise move, so you have the information you need when the time comes for you to make your decision about these issues.

Cordially,
Nancy