The Centers for Disease Control and Prevention (CDC) recommends that all health care workers (HCW), including physicians, nurses, emergency medical personnel, dental professionals and students, medical and nursing students, laboratory technicians, pharmacists, hospital volunteers, and administrative staff receive an annual influenza vaccine. The CDC bases its recommendation on reviewed recent published literature that indicates that influenza vaccination of health care workers can enhance patient safety. The CDC has infection control recommendations for health care settings, but does not issue any requirements or mandates for state agencies regarding infection control practices.

Following the recommendation of the CDC, many health care institutions, including hospitals, state health departments, and nursing facilities are requiring that their employees receive an annual flu vaccination as a condition of continued employment. In 2012, Rhode Island became the first state of its kind to enact a regulation requiring mandatory flu immunizations for all workers, students, trainees, and volunteers who may have routinely anticipated face-to-face interaction with patients at a health care facility.

In similar fashion, according to the Boston Globe, Brigham and Women’s Hospital in Boston required its staff to receive an annual flu vaccination for the 2014 flu season in response to a state public health initiative. Massachusetts public health officials were leaning on hospitals to improve the influenza vaccination rate among health care workers, which varied in hospitals from 62 percent to 99 percent during the most recent flu season. In response to Brigham and Women’s Hospital’s mandate, the Massachusetts Nurses Association sued the hospital in September 2014, seeking to block the policy that would require nurses to get flu shots if they wanted to keep their jobs. The Nursing Association argued in its lawsuit that the hospital’s mandated flu vaccinations violated a state regulation that explicitly bars hospitals from requiring employees to receive the vaccine if they don’t want it. The regulation at issue stated: “A hospital shall not require an individual to receive an influenza vaccine” if the employee has medical or religious reasons for refusing or if “the individual declines the vaccine.”

Nurses unions are divided on the issue. The American Nurses Association released a position statement in August 2015 calling on nurses to receive recommended vaccines, including the influenza vaccine, with only religious or medical exemptions permitted. The ANA supported vaccination because “RNs are responsible for providing patients with evidence-based information to support and promote optimal health and wellness, and for leading by example by participating in health-oriented activities such as immunizations to the greatest possible extent.” On the other hand, National Nurses United has opposed flu shot mandates, saying they engender “distrust and resistance” among employees.

Meanwhile, federal courts have issued conflicting opinions with respect to mandatory flu vaccination policies and religious objections. A federal court in Ohio considering whether claims based on religious discrimination should be dismissed in an action regarding a mandatory vaccination policy determined that dismissal was premature. In Chenzira v. Cincinnati Children’s Hospital Medical Center, the defendant medical center employed Chenzira as a customer service representative for more than a decade. It terminated her employment on Dec. 3, 2010, due to her refusal to be vaccinated for the flu pursuant to the medical center’s mandatory vaccination policy. Chenzira filed suit contending that the medical center’s mandatory flu vaccination policy violated her religious and philosophical convictions because she is a vegan. In response to the Complaint, the defendant medical center filed a Motion to Dismiss Chenzira’s claims on the basis that veganism is not a religion. The court granted the motion in part and denied it in part. The Court denied the Motion to Dismiss as to Chenzira’s federal and state religious discrimination claims and granted the motion as to her claims based on public policy. The Court reasoned that “it is plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.” Thus, the Court allowed the religious discrimination claims to proceed beyond the motion to dismiss stage. The medical center ultimately settled the claim in October 2013 before dispositive motions were filed and before trial.

As reported in the National Law Review, in April 2016, the U.S. District Court for the District of Massachusetts issued much needed guidance to hospitals and other healthcare institutions on whether it is permissible – under Title VII – to require mandatory influenza vaccinations for healthcare workers who object to receiving the vaccination on religious grounds. In the case of Robinson v. Children’s Hospital Boston, Leontine Robinson, a Muslim employee who worked as an administrative associate in the emergency department, objected to receiving the vaccine because it contained a pork byproduct and because she believed many vaccines were contaminated. The hospital offered Robinson a non-gelatin influenza, which had no pork byproduct, but Robinson still refused to be vaccinated, even though she recently had received a tetanus shot. When the hospital explained to Robinson that receiving the influenza vaccination was mandatory, just like receiving the tetanus shot, and that she could be terminated if she refused to be vaccinated by the impending deadline, Robinson still refused the influenza vaccination. After attempting to re-assign Robinson to a non-patient care position, the hospital terminated Robinson’s employment.

Robinson sued under Title VII and Massachusetts state law, claiming the hospital discriminated against her because of her religion. In analyzing Robinson’s claims, the court avoided addressing the hospital’s argument that no reasonable jury could find that Robinson had a bona fide religious belief that precluded vaccination – explaining that “assessing the bona fides of an employee’s religious belief is a delicate business” and is a “quintessential question of fact.” Nevertheless, the court granted summary judgment to the hospital after concluding that the hospital met its burden to offer a reasonable accommodation by encouraging Robinson to apply for a non-patient care position, by allowing her to use her accrued leave to look for a position, by granting her additional leave to look for a position and by terminating her employment in a way that left her eligible for rehire. The court also found that granting Robinson’s exemption request – while allowing her to keep her patient care position – would have created an undue hardship because it was more than a de minimis burden.

Employers should use caution when considering implementing a mandatory immunization policy. Perhaps the most prudent course until these issues are resolved is for health care institutions to encourage their employees to receive vaccinations through voluntary flu vaccination programs. The National Institutes of Health have recognized that health care institutions have used a variety of methods to increase immunization rates among employees, including education, reminder notices, small incentives, easy access to free vaccination, and active promotion within the workplace, in addition to compulsory vaccination as a condition of employment. Programs that actively target previously identified barriers have had a greater impact than have generic programs on staff vaccination rates. Increases in acceptance rates and reduced staff illness and absenteeism have been achieved by improving access to vaccination with a mobile unit, addressing common misconceptions through staff education, making vaccination free of charge, and offering small incentives to staff members who participated in the program. Incentives might include financial rewards, prizes, or public approbation for health care workers who choose to accept influenza immunization. For example, there could be honorable mentions or rewards for hospital units or wards whose staff vaccination rate reached a set percentage. Positive incentives would eliminate potential infringements of health care workers’ rights and would likely remain cost-effective for participating health care institutions.

Whatever the employer’s preference, both mandatory and voluntary vaccination programs should be considered with legal counsel, and measures can be taken to significantly reduce the risk of litigation.