Can workers be required to take the H1N1 vaccine?

With the H1N1 flu widespread in 46 states, and the vaccine lagging, President Obama declared the outbreak a national emergency on Saturday, October 24. The National Law Journal (via Law.com, subscription required) is reporting that more lawyers are receiving questions from employers about mandating swine flu shots for workers.

“Employers should not mandate that people get vaccinations, but they should strongly encourage it," said Steve Biddle, who heads San Francisco-based Littler Mendelson's recently formed H1N1 practice group. Yet, John Michels Jr., a partner in Chicago's Baker & McKenzie, said that in private employment, "the law is pretty well established" regarding an employer's right to mandate vaccinations. If an employer can establish the shots are job-related and a business necessity, such vaccinations can be a legitimate job qualification. However, he said, “employees may be able to challenge the newness of the H1N1 vaccine.”

Employers should not forget to review the EEOC’s guidance on pandemic preparedness in the workplace.