How does an employer prevent H1N1 flu (commonly known as swine flu) or your garden variety flu bug from infiltrating your workplace and your staff? The simple answer is: with caution.
Requiring employees receive flu shots is generally not recommended. Mandatory immunization policies, however, may be appropriate in certain limited employment settings, such as for healthcare workers (e.g., physicians, nurses) who routinely come into contact with patients. Yet even employers making flu shots available on a voluntary basis run a possible risk of legal action by their employees.
“Making flu shots available to your employees might seem like a prudent and considerate thing for an employer to do, but there are many ways it can backfire. For example, even asking an employee to reveal whether or not they’ve been vaccinated might arguably be considered a violation of HIPAA or state privacy laws,” said Terrence M. Schwab, an attorney for Boston-based Tarlow, Breed, Hart & Rodgers, P.C. “That’s not to say an employer shouldn’t make flu shots available to employees, however, there are a host of important considerations and potential repercussions that employers should be aware of.”
Some of the considerations employers should be aware of when deciding whether to offer employees vaccinations against H1N1 or other flu bugs include:
- In all cases, have employees sign a consent and release form prior to receiving a flu shot.
- Be careful when offering incentives (e.g., free lunch, half-day off work) to employees who choose to be vaccinated so as to avoid potential discrimination claims. Some employees might be allergic to flu shots or may have religious beliefs or other valid objections that cause them to choose not to get a flu shot. Excluding employees from an incentive-based flu shot campaign not only exposes employers to potential litigation, but it also could do significant harm to employee morale.
- The better approach is to not keep records of employees who received immunizations and those who did not. Possessing such information, particularly when it concerns those employees who chose not to be immunized, could be considered a violation of HIPAA or state privacy laws.
- If flu shots are made available on-site in the workplace, employers should arrange to have a licensed health care professional or organization (e.g. Visiting Nurses Association) administer the immunizations, and should make sure that any documents contained protected health information received from an on-site healthcare provider be safeguarded because of privacy issues under HIPAA.
“An employer digging into his or her own pocket to provide employees with immunization is a good deed that really should go unpunished,” said Schwab. “By proceeding with care and taking certain precautionary measures, employers can not only help protect their employees from H1N1 or the flu, but they can do so in a manner that greatly minimizes their risk of legal exposure.”
About Tarlow, Breed, Hart & Rodgers, P.C.:
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