Mandatory flu shots create dilemma for risk managers

Once again, clinical experts are debating whether it is necessary to require flu vaccinations for health care works but risk managers must look at the issue a little differently from infection control professionals and epidemiologists. For risk managers, the question comes down to which tactic is more likely to create a liability risk: requiring flu shots or not requiring them.

Either path carries risks, the experts say. Not requiring flu shots can lead to charges that you did not do everything necessary to prevent flu spread in your facility, where it can kill fragile patients. But requiring flu shots opens a Pandora's box of labor issues. While there is no definitive answer, some analysts suggest the safe path for risk managers is to adhere as closely as possible to any state requirements and the standard of care offered by the clinical experts. That is the advice from Jeffrey Braff, JD, an attorney with Cozen O'Connor in Philadelphia.

"The benefits of the vaccine are so great, with medical authorities recommending vaccination so strongly, that I think risk managers would be well advised to adopt at least a very aggressive voluntary program if not a mandatory vaccination program," Braff says. "In terms of what puts you on the best footing for future liability, you probably should side with the medical authorities who are saying that vaccination helps save lives."

The problem is that the clinicians don't always agree on whether it is prudent to require vaccinations for health care workers. Because of that dispute and varying labor laws across the country, it can be difficult for employers to impose mandatory vaccinations, Braff says. Many opt instead for strongly persuading health care workers to obtain the vaccination, he says.

Even if you decide to have mandatory flu vaccinations, you must make exceptions for employees who cannot be vaccinated for health reasons or religious conflicts, Braff says. The employer is obligated to make a reasonable accommodation for that person, such as reassigning the employee to a position that does not involve patient contact.

"But if that person could not be accommodated, or if the person refuses vaccination without a legitimate reason, you could show a strong interest in requiring the vaccination and discharging that individual for their refusal," Braff says. "I think that should be sustained in the courts. Now whether that is a good idea for you in terms of employee relations is another thing to consider."

If you require flu shots, you could model the program after hepatitis B vaccination programs already in place, which usually include employee education, automatic vaccinations if there is no contraindication, and declination forms if the employee refuses, Braff says. It also is a good idea to notify employees at hiring that flu vaccinations are mandatory, he says. Then if the employee refuses without a good reason, you can use that as a defense in any labor dispute.

"You can point to the experts who say this is a good idea and show that you made this a condition of employment," he says. "I think then you would be on good footing to defend any claim of wrongful discharge."

Expect employee resistance

One health care analyst cautions that, no matter how much the folks in infection control tell you it's a good idea, you should expect some blowback from employees if you require vaccinations. Health care workers tend to be much more aware of the debate over the safety and effectiveness of flu vaccines, says Nan Andrews Amish, a health care management consultant on the faculty of the University of San Francisco. They may not be correct about their assumptions necessarily, but they will be more skeptical than the average person, she says.

"They do not believe in vaccines the way the rest of the population has been trained to believe," she says. "As a result, if organizations demand mandatory vaccination as condition of employment, there will be potentially wrongful termination suits by health workers who will provide testimony that they were required to put their life and health at risk to maintain their employment."

Also, Amish suspects that if a health worker reluctantly submits to the vaccine and subsequently gets a severe case of the flu, the employee may sue and claim the shot caused the illness. That is not possible with the flu shot, but Amish says that won't necessarily stop employees from filing a lawsuit. But the biggest risk, she says, is not lawsuits but the loss of scarce talent.

With shortages of nurses, physical therapists, and technicians at many health care institutions, Amish wonders how many might leave for institutions that do not have mandatory vaccination programs.

Another risk, she says, is the loss of management credibility if the flu shots turn out not to be necessary. She points to the resistance health employers faced when the government urged smallpox vaccinations for health care workers as a precaution for biological warfare.

"The program was scrapped because the health workers were unwilling to be vaccinated," she says. "I think you can expect the same kind of resistance if you try to force flu shots on people."

For more information on mandatory flu vaccinations, contact:

  • Jeffrey L. Braff, JD, Cozen O'Connor, 1900 Market St., Philadelphia, PA 19103. Telephone: (215) 665-2048.
  • Nan Andrews Amish, P.O. Box 2555, El Granda, CA 94018. Telephone: (650) 560-9800.