Employee rights vs. patient safety: The balance of mandatory flu shots

It's almost winter — the middle of flu season. Have you gotten your flu shot?

Increasingly, healthcare organizations are requiring their employees to do so.

Last flu season (2013-14), 75.2 percent of healthcare personnel, both clinical and non-clinical, reported receiving a flu shot, up from 63.5 percent the season prior, according to the Centers for Disease Control and Prevention.

However, the CDC has set its sights higher on healthcare personnel immunization. As part of its Healthy People 2020 campaign — a national health promotion initiative — the CDC aims to achieve a 90 percent flu vaccination rate among healthcare personnel by 2020.

"The federal government is not neutral on vaccinations," says Howard Mavity, a senior partner at Fisher & Phillips' Atlanta office. "While they won't come out and say you should make [flu vaccines] mandatory, they emphasize their value."

And while mandatory flu vaccine policies in hospitals are not yet universal, they are certainly on the rise. Mr. Mavity says the rise in mandatory vaccine programs may parallel a growing public acceptance of the vaccinations.

"Legal decisions, to some extent, follow public policy and attitudes," Mr. Mavity says. "Vaccinations in the healthcare side are becoming more accepted."

Still, requiring all healthcare employees to get vaccinated requires a balance between preserving employee rights with patient safety.

Case study: Lahey Health
One health system that implemented a mandatory flu vaccine policy for all employees is Burlington, Mass.-based Lahey Health. Beginning in 2010, all 7,000 employees of Lahey Health — including volunteers, students, residents, administration and custodial staff — are required to get a flu vaccine.

"We have made a great effort to inform our worker population about the value of the vaccine and the safety of it," says Robert A. Duncan, MD, MPH, director of infection prevention and hospital epidemiology at Lahey Hospital & Medical Center.

While there is a mandatory flu vaccine policy, there is an out. Employees who refuse the vaccine are required to wear a face mask during flu season when they are within six feet of another person, though Dr. Duncan says few people opt for that course of option.

At Lahey Health last year, just 1.2 percent of employees declined a flu vaccine, which is minimal. However, mandatory flu vaccine policies stir up controversy throughout the healthcare industry.

The most common objection to mandatory flu vaccines is religion, says Mr. Mavity, followed by allergy concerns and employee unions.

At Lahey Health, Dr. Duncan says no employees have refused the vaccine for religious reasons, although they have had employees with concerns or previous adverse reactions to the vaccines. To quell these concerns, Lahey Health provided free consultations with allergists and neurologists to determine whether the vaccine would be safe for that person.

Analysis of reasonable accommodation
Should an employee take issue with a mandatory policy for religious reasons and threaten a lawsuit, the courts will likely accept that the refusal is a religious issue warranting some level of accommodation, according to Mr. Mavity.

"I'll readily tell you, the law does not want to get into analyzing the sincerity of religious belief," he says.

While the courts would prefer to not determine the sincerity or applicability of religious beliefs, they will look for any accommodation which healthcare organizations offer their employees who may be unable or unwilling to receive the flu shot due to religious objections. A higher duty of reasonable accommodation would be required if the employee refused the shot due to a disability condition under the Americans with Disabilities Act, such as an allergic reaction.

An analysis of reasonable accommodation looks at what the hospital has done, or can do, to accommodate the healthcare worker's wish to not receive the vaccination, such as the face mask option at Lahey Health. It starts with determining to what extent the hospital can reasonably accommodate the worker and whether the employee presents a direct threat to patient safety.

"If you're a children's facility or work with immunosuppressed kids with cancer, you're probably going to have the ability to demand everybody to get a vaccination because you're talking about a patient group that is incredibly vulnerable," Mr. Mavity says. "If it were a chiropractor's office, that would be less risk."

The key to handling such situations, Mr. Mavity says, is to not make knee-jerk decisions and just fire the employee. Most first actions, he says, are not disciplinary. Instead, healthcare organizations are should speak with the employees and council them.

"If a healthcare employer just said, 'If you don't get a flu vaccination, we're going to fire you,' you'd see a lot of legal claims," Mr. Mavity says. "But you don't see that. You see, 'Let's go through this analysis.'"

Employee rights vs. patient safety
Although legal claims aren't common, they do happen. For instance, the Massachusetts Nurses Association recently sued Brigham and Women's Hospital in Boston to block a policy still being considered that would require flu vaccinations for all employees. In another case, a customer service representative at Cincinnati Children's Hospital filed a lawsuit against the hospital for firing her for refusing the vaccine, which she declined due to her alleged veganism.

"It's usually a prior adverse reaction, but often an issue of personal freedom," says Dr. Duncan, commenting on why employees may reject mandatory vaccines.

But professionals largely agree that in healthcare, patient safety takes precedence over individual rights, both in practicality and in healthcare employee obligations.

"On a practical matter, they should put patient care first," Mr. Mavity says. "You're going to see a balancing act, but at the end of the day if you're evaluating risk on every level, you're going to err on the side of patient care."

Dr. Duncan mentions the duty and responsibility of those in the healthcare field.

"It's really the obligation of a healthcare worker, a moral and ethical obligation to take measures which are going to help preserve the safety of your patient, even if it comes at a small inconvenience," he says, adding the system's offering for employees to wear a mask is a concession to those employees who believe there should be more personal freedoms.

At Lahey Health, 100 percent of leadership received the vaccine in the past two years. "I think that's an important demonstration to the rest of employees that we consider this a priority and a major safety effort," Dr. Duncan says.

And so do a number of professional healthcare organizations, including, but not limited to, the American Academy of Family Physicians, American Academy of Pediatrics, American College of Physicians, American Hospital Association, National Patient Safety Foundation and the Society for Healthcare Epidemiology of America.

"This is the number one vaccine-preventable cause of death in the United States, and it can cut the flu-related mortality in half. People have come to recognize that," Dr. Duncan says. "If they had an Ebola vaccine right now, how many people would be refusing it?"

More articles on influenza:

Expect a severe flu season, experts say
CDC: This year's flu vaccine not effective on season's predominate strains
Americans unlikely to seek treatment for the flu, survey finds

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