Every year, employers across the country must face the fact that flu season will strike and there is a risk that employees or customers will become sick. The problem is exacerbated when the highly contagious virus spreads, potentially causing serious problems for an employer. One tool that helps to prevent the problems associated with the flu virus is the flu vaccine.
The Massachusetts Department of Public Health has proposed regulations to require annual influenza vaccinations for all healthcare workers in the state. Employers in any industry generally have the option to mandate vaccinations from their employees, but no laws or regulations in the Commonwealth extend beyond the healthcare industry.
There are exceptions in the proposed Massachusetts regulations in cases where the vaccination “would likely be detrimental to the individual’s health.” Further exceptions are made to accommodate religious beliefs or in the case of unavailability of vaccines. Notably, there is also an exception for people who simply decline the vaccination due to any reason. These objections may be philosophical, scientific, personal, irrational – the regulations do not make any specifications. The only requirement for people who decline the vaccination is to sign a form that indicates they were informed of the benefits and potential negative consequences of receiving the vaccine.
While there are no other Massachusetts statutes or regulations that mandate flu vaccinations, the option exists to require at will employees to get a vaccination in order to reduce the occurrence of employee illness and the transmission of viruses among employees and customers. In fact, in 1905, the Supreme Court held that mandatory vaccinations are not a violation of constitutional liberties.
Before engaging in required vaccinations, employers should consider whether it makes sense in their particular industry and for their particular employees. For example, food industry employees may be likely to spread viruses among co-workers and customers, but the likelihood diminishes for employees with little to no interpersonal contact. The cost of providing the vaccination can be high, and it might be impossible for employees to afford to pay for it themselves. Furthermore, employers risk exposing themselves to liability for side-effects or complications caused by the vaccination when they require it, especially if it is administered by the employer or on the workplace premises.
Employees with legitimate objections to mandatory vaccinations may be unwilling to work for an employer who simply encourages them, let alone requires them, and the corresponding loss of talent may be more than the employer bargained for. Employees may even have legal claims against an employer who attempts to compel vaccination, especially if the objection is based on the freedom of religious exercise.
Employers may consider alternatives to mandatory flu vaccinations to help reduce illness among employees. One option is requiring employees to wear face masks. It is common in the healthcare industry for employers to require employees to wear facemasks. Of course, many employees may not want to do so, and they may find the practice punitive, or it may interfere with their ability to interact with coworkers and customers. Mandatory procedures for a sanitary workplace may be less invasive. For example, employers may require employees to wash their hands multiple times per day. However, a policy like this may be difficult or impossible to enforce. Policies that encourage employees to stay home when they are sick may diminish the likelihood of disease transfer. An employer might benefit from allowing employees to work from home when they are sick. But this might not be feasible for employers who are unable to accommodate telecommuters. Education may be the simplest solution for employers who wish to reduce the incidence of illness at the workplace. Employers can ensure that all employees know about the dangers of the flu virus, additionally teaching employees about best practices for avoiding transmission, including hand washing and avoiding touching the face. Furthermore, employers are free to provide information to employees about the availability and effectiveness of the flu vaccine, but they should be careful to discuss potential risks that accompany vaccination as well.
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