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Proposed bill would protect workers who forgo flu vaccination

Special to the Legal News

Published: March 14, 2018

A bill meant to protect an individual's decision whether he should be vaccinated against the annual flu virus recently began a second round of hearings in the Ohio House of Representatives.

Filed as House Bill 193, the legislation relates directly to the decision and its impact on an employer's bottom line.

The bill would prohibit an employer from taking an adverse employment action against a person who has not been or will not be vaccinated against influenza.

"This legislation has been crafted after hearing the concerns of many Ohioans, health care professionals in particular, whose personal freedoms are being infringed upon as it relates to the ever increasing pressures and employment demands related to the influenza vaccination," Rep. Christina Hagan, R-Alliance, told members of the Health Committee. "HB 193 brings Ohio in line with 13 other states that prohibit the flu vaccine from being a mandatory term of employment."

The lawmaker was clear the legislation was neither pro-vaccine nor anti-vaccine.

Rather, the bill is about professionals maintaining their rights as individuals making their own medical decisions, specific to only the influenza vaccination.

Hagan said the issue was brought to her attention by a constituent medical professional whose relationship with an employer has been adversely affected by the individual's decision to waive flu vaccination.

"Many people, especially those who are in the business of keeping themselves and others healthy, do not want to inject strands of flu viruses into their system recognizing that the repercussions are not necessarily known nor are the positive intentions guaranteed," she said. "When this legislation was originally introduced, after the 2014-2015 flu season, the efficacy rate was at 23 percent; for populations under two and over 65 years of age the efficacy rates are even lower.

"This flu season, the efficacy rate is only 36 percent overall and more American's are finding themselves in outpatient care for influenza-like illnesses this year than in any other year."

Specifically, HB 193 would prohibit any employer, including the state and political subdivisions, from discharging without just cause, refusing to hire or from otherwise discriminating against any person with respect to hire, tenure, terms, conditions or privileges of employment on the basis that the person has not been or will not be vaccinated against influenza for any reason.

An amendment to the bill, however, would permit an employer to require an employee who has not or will not be vaccinated against influenza to comply with a reasonable alternative policy adopted by the employer to protect health and safety in the workplace.

"Voluntarily agreeing to take the flu vaccine, knowing the risks and low efficacy rate is a right that should be maintained, but to mandate such a vaccine or face termination of employment is an egregious violation of personal freedom," Hagan continued. "This legislation is necessary to preserve the autonomy of the individual.

"I am both pro-business and pro individual responsibility; I understand that there are substantial pressures on these medical institutions to increase rates of influenza vaccinations in correlation with their federal reimbursements."

The federal government, however, should not be deciding for the individual what is best for their individual healthcare situation, she said.

The lawmaker attributed the exposure to possible termination to "many respected professionals" having left jobs or switch careers altogether.

Ohio Legislative Service Commission analysis noted HB 193 did not establish any penalty for an employer who violates the prohibition.

The bill expressly notes legislators' intent that the prohibition not be expanded to include vaccination against any disease or illness other than influenza until the overwhelming scientific consensus clearly indicates a present and immediate danger to members of the public who receive the vaccination, analysis detailed.

Members of the Economic Development, Commerce and Labor Committee previously reported HB 193 out of committee last fall before referral to the Health Committee.

Seven fellow House members have signed on as cosponsors of the bill, which had not been scheduled a second hearing at time of publication.

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