An employee of a hospital in New York has been terminated for her refusal to receive the flu shot vaccine. The employee checks in patients at the Cancer Center and has worn a mask during the six-month flu season for the last five years instead of getting the vaccine.
This year, the hospital required all non-allergic workers to receive the flu shot. The hospital paid for an independent allergist to evaluate each employee who did not want to receive the vaccine. Those who were allergic to certain components were offered a different version of the vaccine. Those who were allergic to components that are essential to the vaccine were given an exemption. For those that it was found were not allergic to the vaccine had to get the flu vaccine.
The employee who was terminated for her refusal to receive the flu vaccine was sent to an allergist to describe her previous reactions, but the allergist said that there was no way to prove her previous reactions were connected to the flu vaccine. The allergist recommended that she receive the eggless vaccine, but the employee refused to get vaccinated; therefore, hospital officials said that she had to be vaccinated by December 1 or be fired.
The federal government does not mandate that employees receive a flu vaccine. Individual states vary in whether or not a flu vaccine is mandatory. The US Occupational Safety and Health Administration (OSHA) has stated that employers can legally impose a flu vaccine requirement on their workforce, but employees have the right to request medical or religious exemptions under federal anti-discrimination laws. Each exemption is required to be evaluated on its own merits, which can be a very time-consuming process for employers.
In March 2020, the Equal Employment Opportunity Commission (EEOC) concluded that even during a pandemic, the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 prevent an employer from making employees receive the flu vaccine before first giving consideration to specific individual’s medical conditions and sincerely held religious beliefs. Additionally, the EEOC concluded that the COVID-19 pandemic meets the ADA’s “direct threat” standard under Centers for Disease Control and Prevention (CDC) and other guidance because someone with COVID-19 poses a “significant risk of substantial harm” to others in the workplace. This determination authorized employers to take employees’ temperature and ask COVID-19-specific questions to screen for symptoms according to CDC guidelines.
Compliance Perspective
Issue
As policies and procedures are being developed for the anticipated COVID-19 vaccination, an administrative decision should be made regarding whether or not the COVID-19 vaccine will be mandatory for the facility. It is unlikely that the federal government will mandate the COVID-19 vaccination. In the future, individual states may mandate COVID-19 vaccination, so facility administration should monitor for directives in their individual state. If a facility decides to mandate the COVID-19 vaccine, the medical director should be involved in making the decision, and the human resource director or designee should be included in determining the consequences for not receiving the COVID-19 vaccine, keeping in mind the hesitancy that many employees will have in receiving the anticipated vaccine, and how education about the risks and benefits of the vaccine will be distributed to employees.
Discussion Points
- Begin to develop policies and procedures regarding the COVID-19 vaccination. While developing the COVID-19 vaccination policy, a discussion with the medical director and facility leadership should be conducted on whether the vaccine will be mandatory for employees.
- Begin to educate employees on the importance of receiving the COVID-19 vaccine. This education should include the benefits and potential side effects of receiving the vaccine. Obtain the AMDA free toolkit, which includes educational power point programs for use in training staff and medical personnel; a sample letter for distribution to residents, families, and/or staff; and other valuable resources. Access the Toolkit here (if you are not a member, create an account when opening the link in order to access the free information).
- Develop a tracking tool for monitoring administration of the vaccine once it is available. Audit to ensure that all staff members receive education so they understand the value of the vaccine and monitor for potential side effects to report.
