Chicago partner Mark Nelson was quoted in an article titled, “How to implement—and enforce—a flu vaccination policy,” in The Advisory Board’s Daily Briefing.
In the Q&A article, Mark discussed the legalities of implementing and enforcing flu vaccination policies for health care providers, legal strategies to mitigate and prevent liability, and legal grey areas that might challenge providers.
During flu season, it's important for providers to balance the interests of patients and employees. And generally, effective vaccination policies are in the best interests of patients (particularly among elderly and pediatric populations) and employees.
Mark advises that providers should be mindful of federal exemption laws when implementing flu vaccination policies. The employer needs to reasonably accommodate the religious beliefs and disabilities of their employees. Under the Americans with Disabilities Act, employees may be exempt from a flu vaccination due to medical contraindication in cases where a flu vaccination could worsen someone's health. Providers should review state and federal policies when developing flu vaccination policies and before enforcing a negative consequence for non-compliance.
When considering a vaccination policy, providers should seek up-to-date information regarding flu vaccination efficacy and recommendations from CDC and other national health agencies. Providers should then evaluate the compliance culture of their organization to gauge how much resistance there could be if they implement a proposed policy. Flu vaccination policies can vary in terms of flexibility, and it is up to the provider to decide which degree of compliance strictness best fits their organization's culture.
Additionally, providers should assess each non-compliance case individually in order to understand why a particular employee is not getting vaccinated. Terminating or taking other adverse action against an employee who cannot get the flu vaccine because of a disability or religious objection exposes a provider to meaningful risk of a discrimination lawsuit.
Should the provider not wish to terminate an employee for violating flu vaccine policies, they may require their patient-facing employees to wear a surgical mask throughout flu season. Another alternative is transferring patient-facing employees to another position, such as an administrative role. These two alternatives allow employees to continue working and suffer a minimal economic impact. Providers could also consider placing non-compliant employees on a voluntary or involuntary leave of absence as a third option.
Finally, Mark describes the most common pitfalls occur when providers do not recognize or respect their organization's culture prior to implementing and enforcing strict flu vaccination policies, which can lead to employee dissatisfaction.
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