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OSHA: Employers May Require Employees to Take Flu Vaccines

By Bradford T. Hammock on February 16, 2010
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Employers may order employees to take seasonal and H1N1 vaccines, the nation’s principal workplace safety and health agency has stated.  OSHA offered this opinion in a letter of interpretation, published recently on the agency’s website.

The letter is addressed to Congresswoman Marcy Kaptur (D-OH), who relayed to OSHA a letter from a constituent asking whether her employer could mandate that she accept a flu shot. According to the constituent, her employer had “threatened the employees with mandatory time off” if they did not accept the flu shots.

OSHA responded, first, by reiterating its guidance that healthcare employers should offer both the seasonal and H1N1 vaccines to employees and that employees should be informed of the vaccines’ benefits. It added, however, that employers may require employees to take the vaccines, even though OSHA has no published standard containing this requirement. OSHA also provided a cautionary note: an employee who refuses to be vaccinated because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death may be protected from job retaliation under Section 11(c) of the OSH Act, which prohibits discrimination against employees who exercise their safety and health rights.

The issue of whether employers can require employees to take flu vaccines has been controversial for both employers and employees. OSHA appears to be stepping directly into this controversy. Even though media attention over the H1N1 virus has subsided for the moment, the issue of mandatory vaccines for employees is one that likely will recur during the next flu outbreak.

While employers should be aware of OSHA’s interpretation, they also must be mindful of other laws and regulations that may be applicable to issues affecting mandatory vaccinations. Collective bargaining agreements also may be relevant. Employers should consider all of this information before adopting any vaccination policies.

Photo of Bradford T. Hammock Bradford T. Hammock

Brad Hammock is a Principal in the Washington, D.C. Region office of Jackson Lewis, practicing exclusively in the safety and health area. He heads Jackson Lewis’ Workplace Safety and Health practice group.

He joined the firm in 2008 after serving for ten years…

Brad Hammock is a Principal in the Washington, D.C. Region office of Jackson Lewis, practicing exclusively in the safety and health area. He heads Jackson Lewis’ Workplace Safety and Health practice group.

He joined the firm in 2008 after serving for ten years as an OSHA attorney within the Department of Labor including, most recently, for more than three years as lead counsel for safety standards. As lead counsel, Mr. Hammock managed attorneys who worked with OSHA on regulatory initiatives, compliance assistance, and enforcement policy. He had direct responsibility for more than 20 major OSHA regulatory initiatives, including rulemakings on personal protective equipment, confined spaces, and crane safety.

Before his promotion to lead counsel, Mr. Hammock worked as a regulatory attorney for OSHA, focusing on ergonomics. He was one of the lead attorneys during the development of the OSHA ergonomics standard in 2000 and had primary responsibility for the Department of Labor’s comprehensive approach to ergonomics in 2002. Mr. Hammock is widely regarded as one of the nation’s most experienced attorneys on ergonomics.

Education

  • University of Virginia/Bachelor of Arts in American Government/1992
  • Syracuse University College of Law/Juris Doctor, magna cum laude/1996

Bar Admissions

  • District of Columbia
  • Virginia
Read more about Bradford T. HammockEmail
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  • Posted in:
    Employment & Labor
  • Blog:
    OSHA Law Blog
  • Organization:
    Jackson Lewis P.C.
  • Article: View Original Source

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