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

Abstract

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. Almost immediately after it was issued, the New York law was challenged by state employees’ unions and individual healthcare workers. On October 16, 2009, Justice Thomas J. McNamara of the New York State Supreme Court issued a temporary restraining order against the regulation. 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. Private employers cannot hire healthcare workers who do not comply with the state requirement. Only a handful of private employers have required employees to receive the influenza vaccine because typically employees obtain the vaccine voluntarily. 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.