FAQ: What are the legal considerations around implementing and managing mandatory programs?

What are the legal considerations around implementing and managing mandatory seasonal influenza vaccination programs for HCPs? [FAQ Date: April 1,  2013]
Writing in Vaccine, Randall et al [citation and abstract below] present a very useful overview of legal considerations. We urge a full reading of the article, but provide excerpts including the table below on areas of law pertinent to mandates. and the articles Conclusion statement.

Legal considerations surrounding mandatory influenza vaccination for healthcare workers in the United States
Lisa H. Randall, Eileen A. Curran, Saad B. Omer
Volume 31, Issue 14, Pages 1765-1878 (3 April 2013)
Review Article Pages 1771-1776
Recent years have brought increased focus on the desirability of vaccinating more healthcare workers against influenza. The concern that novel 2009 H1N1 influenza A would spark a particularly severe influenza season in 2009–2010 spurred several institutions and one state to institute mandatory vaccination policies for healthcare workers, and several new mandates have been introduced since then. Some healthcare workers, however, have voiced objections in the media and in legal proceedings. This paper reviews the characteristics of influenza and how it is transmitted in the healthcare setting; surveys possible constitutional, administrative, and common law arguments against mandates; assesses the viability of those arguments; and identifies potential new legal strategies to support influenza vaccine mandates. It is intended to assist those involved in the regulation and administration of public and private healthcare institutions that may be considering approaches to mandates but have concerns about legal challenges.


7. Conclusion
The trend toward new and stronger healthcare worker influenza vaccination policies is welcome. The ability to mandate vaccination is crucial to healthcare institutions’ ability to protect their patients from influenza. The chief vulnerability of a prospective mandate arises where it is introduced into a unionized workforce; institutions are advised to make compliance with the mandate an express term of employment upon hiring new healthcare workers and for all unionized healthcare workers at the time of contract renewal. Other objections, premised on constitutional, contract, regulatory, statutory, or tort law, appear legally unsound.





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