The CDC, the Advisory Committee on Immunization Practices, and the Healthcare Infection Control Practices Advisory Committee recommend that all healthcare workers (HCWs) get vaccinated annually against influenza. Studies have shown that maintaining a high level of staff vaccination protects patients, HCWs and their families from the complications of seasonal influenza.
For the 2013-14 season, the overall final vaccination coverage among HCWs was 75.2 percent. Flu vaccination coverage was higher among HCWs whose employers required or recommended that they be vaccinated compared to those HCWs who did not have an employer policy regarding flu vaccination. An increasing number of healthcare organizations are implementing mandatory flu vaccination policies. Mandatory vaccination policies, however, have drawn opposition from some HCWs who prefer not to receive the vaccine for various reasons.
A requester from a local health department recently contacted the Network asking whether there is any legal basis for such mandatory flu vaccination policies to be challenged.
The Network provided the requester with several resources that address legal considerations relating to mandatory flu vaccination and summarized some potential constitutional, statutory and common law challenges that could arise. The Network noted that some legal challenges would more likely arise when a mandate is implemented by a governmental employer, and other challenges would more likely arise when a mandate is implemented by a private employer.
HCWs may argue that government-sponsored vaccine mandates are unconstitutional and violate their civil rights. Some HCWs have claimed that requiring them to receive a vaccine infringes on their right to practice their religion, enter into contracts, and is an invasion of privacy and compromises bodily autonomy. However, courts have upheld mandatory vaccination policies in various contexts as an appropriate intervention designed to protect the public health and safety.
In a unionized healthcare facility, another source of a legal challenge may be the National Labor Relations Act, which was used to successfully challenge a mandatory vaccination policy at Virginia Mason Hospital in Seattle. That case suggests that before implementing a mandatory flu vaccination policy, a unionized healthcare facility should inform the union of its intentions and allow for negotiation and collective bargaining.
HCWs might also challenge vaccine mandates under various federal laws, arguing that the Americans with Disabilities Act and the Civil Rights Act of 1964 protect their right to refuse the flu shot on medical and religious grounds. HCWs could argue that these statutes require an employer to provide a reasonable accommodation or alternative to vaccination to employees who object to the flu shot on these grounds. HCWs could also potentially assert additional legal challenges under other federal statutes, state constitutions, state civil rights statutes or common law grounds.
Though there are many possible legal challenges to vaccination mandates, a carefully crafted policy is likely to be successful in increasing vaccination rates and providing protection to patients and employees. To avoid legal ramifications, it is important that a healthcare facility involves legal counsel in its determinations. The Network encouraged the requester to work closely with legal counsel to assess potential risks of a successful challenge in the requester’s jurisdiction and to ensure compliance with all legal requirements.
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