Can My Boss Stick it to Me? Courts May Give a Shot in the Arm to Employer-Mandated H1N1 Vaccines

The H1N1 influenza virus, more commonly known as “swine flu,” emerged in the spring of 2009. In response to the 2009 H1N1 influenza outbreak, New York State Health Commissioner Richard Daines, MD, enacted an emergency regulation requiring all New York healthcare personnel to receive the seasonal influenza and H1N1 influenza vaccine by November 30, 2009 as a precondition of employment. The regulation affected all paid and unpaid staff who would have direct contact with patients or who “could potentially expose patients” including volunteers, students, and contractors. The regulation provided only one exemption: healthcare workers who could provide documentation from a physician or nurse practitioner showing that vaccination was medically contraindicated, meaning the worker had been diagnosed with a medical condition which precludes him or her from receiving the vaccines. Unlike prior laws mandating vaccinations, the New York law did not contain an exemption for religious or philosophical objections.

Almost immediately after it was issued, the New York law was challenged by state employees’ unions and individual healthcare workers. New York was the only state in the nation to mandate vaccinations as part of its 2009 H1N1 response. Neither the Centers for Disease Control (CDC) nor the Department of Health and Human Services (HHS) have recommended mandatory vaccination of employees. On October 16, 2009, Justice Thomas J. McNamara of the New York State Supreme Court issued a temporary restraining order against the regulation. Approximately one week later, the New York State Health Department announced that the mandatory vaccination program was suspended. In an official press release, the Health Department claimed the suspension was due to “shortage of vaccine.” Although the supply of vaccine has increased and is widely available to the general public at local health departments, doctors’ offices, clinics, supermarkets, and pharmacies, the New York regulation has not been reinstated.

Undoubtedly, the New York Health Department has the authority to enact policies to promote public health. The Supreme Court has long recognized that protecting the public health is a legitimate exercise of a state’s police powers. However, the Supreme Court has also held that a government employee has a property interest in his or her job if he reasonably expects to remain employed by the government. The Fourteenth Amendment to the Constitution requires a state government to provide due process to an individual from whom it intends to seize property. To fire a state employee for non-compliance, New York State would be required to show that the termination of an employee and attendant deprivation of the employee’s property right, is based on a rule that is “rationally related” to the government’s interest in protecting the health of the public.

In the private sector, employees do not have a property interest in their jobs, but workplace health policies must still comply with federal and state regulations governing public health. For example, Alabama , Arkansas , California , Kentucky , Maine , Maryland and New Hampshire all require that health care workers in long term care facilities and occasionally hospitals receive the influenza vaccine. Private employers cannot hire healthcare workers who do not comply with the state requirement. In all of the aforementioned states, employees may be exempt from the vaccine for medical or religious reasons. Further, California requires hospital employees to be vaccinated for influenza but allows them to refuse in writing for any reason. Private employers in those states cannot mandate vaccinations without also allowing the exemptions. Absent the exemption, an employer’s policy could be illegal on its face and provide grounds for a cause of action for abusive discharge.

Only a handful of private employers have required employees to receive the influenza vaccine because typically employees obtain the vaccine voluntarily. In 2004, Virginia Mason Medical Center in Seattle, Washington became the first hospital in the country to require the influenza vaccine for workers with direct patient contact. In 2009, other hospitals followed suit including the Charleston Area Medical Center in West Virginia, Loyola University Hospital in Illinois, Emory University Hospital in Georgia, and University of Iowa Hospitals and Clinics in Iowa. In September 2009, MedStar Health, a large health system in the Washington/Baltimore region mandated that all 25,000 of its workers including janitors and food service employees get vaccinated for seasonal and H1N1 influenza.

With the incidence of H1N1 on the rise, and the potential emergence of other flu strains, private employers are likely to enact policies to protect the health of employees. This paper will explore the legal ramifications of private sector mandatory vaccine policies in the workplace.

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