New Jersey health care facility workers cannot refuse to receive a flu shot.  On January 13, 2020, Governor Phil Murphy enacted N.J.S.A. § 26:2H-18.79, concerning influenza vaccination in New Jersey health care facilities.  The statute first provides that, beginning with the onset of the first flu season next following the effective date of the legislation, each health care facility (i.e., general or special hospital, nursing home or home health care agency) must establish and implement an annual flu vaccine program in accordance with the recommendations of the federal Centers for Disease Control and Prevention (CDC) and any rules and regulations adopted in accordance with the statute.

For the purposes of its annual flu vaccine program, each health care facility must annually provide a flu shot to each of its employees and require that each employee at the facility receive a flu shot annually no later than December 31 of the current flu season, which flu shot must be provided by the facility.

A health care facility employee who does not wish to have a flu shot must prove that he or she has a medical exemption, which must be submitted using a form designated by the Department of Health, stating that the flu shot is “medically contraindicated, as enumerated by the Advisory Committee on Immunization Practices of the federal Centers for Disease Control and Prevention.”  An attestation of a medical exemption is subject to approval by the facility following the facility’s review to confirm that the exemption is consistent with CDC standards.  A health care facility must not discharge or reduce the pay of any employee who receives a medical exemption from the annual flu shot requirement.

For a health care facility employee who does not wish to have a flu shot, the only other option provided by N.J.S.A. § 26:2H-18.79 for avoiding having a flu shot is the health care facility’s suspension of its annual flu shot program in the event of a shortage of flu vaccine as determined by the Commissioner of Health.

The statute also mandates that each health care facility:

  • maintain a record or attestation of flu shots and medical exemptions for each employee and report to the Department of Health the vaccination percentage rate of its workforce, which data the Commissioner of Health must make available to the public.
  • provide an educational component to its program to inform employees about the flu and flu shots.
  • evaluate the program annually with the goal of improving the rate of vaccination among employees.
  • require any employee who does not receive a flu shot to wear a surgical or procedural mask when in direct contact with patients and in common areas, or to be removed from direct patient care responsibilities during flu season.

The statute does not provide for a religious exemption for health care workers.

An employee of a health care facility may not decline to receive a flu shot; thus, an employee who refuses a flu shot may be terminated unless he or she has a medical exemption or there is a shortage of flu shots.

Under the new law any and all employees of a health care facility, not just health care workers, must receive a flu shot. This is important because infections can spread in different ways and in different locations inside a health care facility.  The flu vaccine can protect vulnerable patients as well as front-line health care facility employees, which is especially important during the COVID-19 pandemic.  Health care facility employees have frequent contact with high-risk patients and can spread the flu or COVID-19 even if they do not have symptoms, and the flu or COVID-19 could be deadly diseases.

Pursuant to N.J.S.A. § 26:2H-18.80, no later than August 1st of each year, the Commissioner of Health must report to the Governor and the Legislature on the vaccination percentage rates of health care workers for the prior influenza season.

If you are an employee of a healthcare facility and you feel you have been wrongfully terminated for refusing to take a flu shot because your employer did not honor a valid medical exemption, call Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Our attorneys are well experienced in handling discrimination, unlawful retaliation and wrongful discharge claims. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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