As hospitals tighten the rules around flu vaccinations, a vocal faction of healthcare workers, many of them nurses, is challenging the mandates.
A determined minority of healthcare workers is growing increasingly vocal in its resistance to yearly influenza vaccination requirements imposed by hospitals.
On September 22, the Massachusetts Nurses Association filed a lawsuit against Boston's Brigham and Women's Hospital in Suffolk Superior Court. While this is one of the most prominent cases, the issue has been playing out in hospitals across the country.
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The matter is complicated because rules about vaccinations are either determined by the states, or not addressed at all. Eight states: CA, IL, ME, MD, MA, NE, OK, and TN have "offer" laws, which are usually interpreted to mean healthcare facilities are required to offer the flu shot must to their employees, but staff have the right to decline vaccination.
Three states—AL, NH and RI—require all healthcare workers to be vaccinated against the flu yearly.
"Are they honestly telling me that… they would rather have patients lose a highly skilled, qualified [unvaccinated clinician]? What kind of incentive would move an institution to impose that as a restrictive policy?" asks Julie Pinkham, Executive Director at the Massachusetts Nurses Association, which represents nurses at Brigham and Women's hospital.
"We've gone along with essentially a voluntary process," she said by phone this week. "We had worked out in previous years that nurses who didn't want to volunteer would just sign a declination form. If a nurse declined for any reason, he or she would wear a mask when entering a patient's room."
"Of course, we're hyper vigilant of the fact that if a nurse is symptomatic, [she or he] shouldn't be in the workplace anyway," Pinkham continued, noting that there are other transmittable illnesses, including colds, for which there are no vaccines.
Unionized facilities have made some headway in protecting their employees from being forced to receive influenza vaccinations "or else," says Pinkham, while non-unionized settings have had less.
"You're an at-will employee. You don't have the same rights as you do under a unionized setting under the National Labor Relations Act or under state law… that's a different mixed bag for what you're going to get for results across the country."
The MNA believes that requiring nurses to get a flu vaccine as a condition of employment is illegal in Massachusetts.
Patients First
"Our position is that we always put the needs of the patients we serve first," says Lynn Nicholas, president and CEO of the Massachusetts Hospital Association.
"We really do believe that [flu shots] should be mandated," she continues. "We actually put a bill in to the state legislature that we're going to push [which] actually requires all healthcare workers have a flu vaccine, unless there is a specific religious contraindication or a medical contraindication."
Reached by phone this week, Nicholas said that if passed, the bill would close the legal loophole, cited by the MNA, which maintains that the statewide flu vaccine mandate is illegal.
"People in hospitals today are very ill. Many are immunocompromised, they have multiple conditions, they're having surgery, transplants, [or] they have cancer." Nicholas says.
At the Dana Farber Cancer Institute, where nurses are also represented by MNA, 99% of employees have been vaccinated against the flu. "Those nurses know it would be devastating for their patients to get the flu. And they stepped up to the plate," she says.
Nicholas argues that refusing the flu vaccine for any reason other than on religious or health grounds is antithetical to the very concept of nursing. Pinkham says sick nurses can stay home. But Nicholas points out that people who have the flu are contagious prior to showing symptoms and that nurses are likely to get sick during a flu outbreak—when their presence is most needed at work.
Mandates on Trial
Nicholas says she's not heard of flu vaccine resistance for healthcare workers making much progress in the courts, and she has the agreement of Alan Phillips, an attorney in Asheville, NC, who advocates for vaccine exemptions and waivers.
"I think there's been headway made in that court cases sometimes help us clarify the law, but, from the perspective of those who are seeking to avoid vaccines, I think court cases on the whole have been largely ineffective," he says.
Phillips tries to settle his clients' cases, usually by arguing that workplace policies are unlawful. "I don't know that hospitals would [see it this] way, but I'm basically helping hospital administrators to understand the law and helping to bring them into compliance."
Phillips says that the vaccination policies of about 95% of the hospitals that employ his clients are unlawful.
"If it's an unlawful policy, the first thing might be to decide how to address that, if it's… asking you to do something that you can't do as an employee."
Behind the Mask
Some hospitals ask non-vaccinated employees to wear masks, but Phillips considers the move punitive. Pinkham disagrees. And Nicholas feels it is a reasonable accommodation for healthcare workers who absolutely cannot or will not get a vaccine.
"I think a patient has a right to know whether someone has used flu vaccine or not, just like they have a right to see whether someone washes their hands when they enter a room… The mask is at least a visible symbol of that. But it would be alarming to patients to see many people wearing masks. It should be the exception, not a rule," Nicholas said.
The CDC estimates that 75% of all healthcare workers were immunized against the flu in over the 2013 – 2014 flu season; the CDC's Healthy People 2020 plan calls for 90% of all healthcare workers receive the flu vaccine yearly.
As part of CMS's plans to improve hospital transparency, vaccination rates of hospital employees will eventually become available to the public on hospitalcompare.gov, beginning December 11, 2014, Don McLeod, press officer at CMS said in an email.
But, as the Massachusetts case works its way through the legal process, Nicholas, notes that for her, flu vaccination isn't just part of a labor disagreement or a goal set by the CDC or CMS. "It's about protecting patients. Getting a flu vaccine is just the right thing to do," she says.
Lena J. Weiner is an associate editor at HealthLeaders Media.