In general, you’d think that offering employees worksite access to seasonal flu shots or even the H1N1 vaccine would give employers a PR boost (unless you’re Goldman Sachs).

However, advice from Boston law firm Tarlow, Breed, Hart & Rodgers emphasizes that employers should proceed with caution when offering worksite flu shots, as employers making flu shots available on a voluntary basis run the 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,” warns Terrence M. Schwab, an attorney with TBH&R. “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. 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 tips for employers considering whether to offer employees vaccinations against H1N1 or seasonal flu:

* Have employees sign a consent and release form prior to receiving the shot.

* Be careful when offering incentives (free lunch, half-day off work) to employees who choose to be vaccinated. Such carrots could raise potential discrimination claims, since some employees might be allergic to flu shots, have religious beliefs against vaccinations or simply choose not to get a flu shot. Excluding employees from an incentive-based flu shot campaign exposes employers to potential litigation.

* Don’t keep records of employees who received immunizations and those who did not. 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.

* Have a licensed health care professional or organization administer the immunizations, and make sure any documents containing protected health information are safeguarded.   

“An employer digging into his or her own pocket to provide employees with immunization is a good deed that really should go unpunished,” says 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."

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