My hospital is making the flu shot mandatory. If healthcare providers refuse to get the immunization, they must wear a mask at work or face termination. Is this legal?
Monday October 19, 2009
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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
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 (ABC News, "Flu Shots A Tough Sell To Health Care Workers" by Melanie Welt, Sept. 16, 2009).
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 (ABC News, above).
In contrast, New York State's edict 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 (www.wcbstv.com/breakingnewsalerts/mandatory.h1n1, Oct. 16, 2009. Accessed Oct. 19, 2009). For now, flu vaccinations are voluntary.
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 the N95 respirator mask is more protective (Los Angeles Times, "Swine Flu: How Good Are Those N95 Masks Anyway?" Karen Kaplan, Sept. 30, 2009). The U.S. Centers for Disease Control and Prevention and the Institute of Medicine 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
Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.
