As one healthcare organization faces a DOJ lawsuit for allegedly violating religious rights with its mandatory flu vaccine policy, another explains how it has aimed to keep its toes on the right side of the law.
Now that the worst of the current flu season appears to have passed, it’s time for healthcare organizations to take a step back and assess whether their current vaccination policies are appropriate and effective.
Although the Centers for Disease Control and Prevention (CDC) recommend that all healthcare workers receive an annual flu vaccine, individual hospitals and health systems have some latitude to devise and implement policies based on their own strategies within the bounds established by state laws.
Rajesh Prabhu, MD, an infectious disease specialist and chief patient quality and safety officer for Essentia Health, based in Duluth, Minnesota, says his organization made the decision to switch last fall from a voluntary to a mandatory flu vaccine policy after studying the experiences of other institutions across the nation.
“In previous years, we had ‘mandatory participation,’ meaning that everyone had to declare a ‘yes’ or ‘no’ were they going to get the influenza vaccine,” Prabhu tells HealthLeaders Media.
Under the old policy, almost all Essentia employees participated as directed, with about 82% answering “yes” and getting the flu vaccine. Under the new policy, Essentia boosted its flu vaccination rate to about 98% for the current season, including staff involved in direct patient care, vendors, and volunteers, Prahbu says.
Regardless, Prabhu says the policy change was necessary, carefully planned, and appropriately implemented.
Where’s the line?
If you’re going to implement a mandatory flu vaccine policy, you must be careful. Pushing too far or failing to include proper safeguards could violate worker rights.
That’s what the U.S. Department of Justice accused Lasata Care Center this week of doing. The county-owned skilled nursing facility in Port Washington, Wisconsin, required a certified nursing assistant to receive a flu vaccine or be fired.
The worker, Barnell Williams, sought an exemption from the mandate in 2016 on account of her belief that vaccines violate the Bible’s teachings on the sacredness of the human body, according to the DOJ.
Williams pleaded her case directly to the facility’s highest-ranking official, but her request was denied allegedly because she could not produce a letter from a religious leader attesting to her belief. Ultimately, she acquiesced.
“Williams suffered severe emotional distress from receiving the flu shot in violation of her religious beliefs, including withdrawing from work and her personal life, suffering from sleep problems, anxiety, and fear of ‘going to Hell’ because she had disobeyed the Bible by receiving the shot,” the DOJ alleged in a lawsuit filed this week against the facility on Williams’ behalf.
The suit accused the facility of engaging in unlawful religious discrimination and failing to reasonably accommodate Williams’ religious belief—allegations which county leadership denied.
Requiring employees to submit a letter from their clergy could prove problematic because some workers, like Williams, hold religious beliefs without being part of an organized religious group, as the Equal Employment Opportunity Commission (EEOC) Compliance Manual explains.
“Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others,” the manual states.
The DOJ suit notes that the Lasata Care Center changed its policy after Williams filed a complaint with the EEOC in 2016 and that it no longer requires a clergy letter.
How to employ safeguards
Prabhu—who was unaware of the Lasata Care Center case this week—says Essentia did not require employees seeking a religious exemption to submit a letter from a religious leader. Instead, it asked them to explain how the vaccine would contradict their deeply held views.
One committee reviewed requests for religious exemptions in light of the EEOC’s guidance, while another committee reviewed medical exemption requests, Prabhu says.
“The medical exemption is pretty standard. If you’re allergic to the vaccine or any of their components or you have some documented really severe reaction to the flu vaccine in past years, you were granted a medical exemption.”
Each committee’s work was part of a blinded process, so committee members could not tell who made the request or the department in which the requester worked, Prabhu says. More than 70% of medical exemption requests and about half of religious exemption requests were granted.
“And we did have an appeals process for both medical and religious exemptions, that were also blinded,” he adds.
Although some organizations may require workers who were granted flu vaccine exemptions to wear masks during the flu season, Essentia decided against implementing such a policy.
“The reason we didn’t feel that was, I guess, justified is that … the flu vaccine isn’t 100% effective,” Prabhu says.
Interim estimates published last month suggest the flu vaccine was only about 36% effective against influenza A and influenza B for the 2017-2018 season, according to the CDC.
It’s always possible, of course, for a vaccinated healthcare worker to catch a strain of the flu that wasn’t covered by the annual vaccine (or for a worker to exit flu season unscathed despite having skipped the vaccine). So the estimated effectiveness in a given year should be seen as measuring the reduction in risk, among those vaccinated, of having a flu case severe enough to warrant medical care, Prabhu says.
With that in mind, Essentia instructed workers to wear masks or stay home if they experience a respiratory illness of any sort, and to always practice proper hand hygiene, regardless of their vaccination status, Prabhu says.
Before changing policies
If you’re looking for ways to boost vaccination rates among healthcare workers in your organization, it’s worth considering options that entail positive reinforcement, rather than punitive measures for noncompliance.
Kimberly J. O'Donnell, JD, a senior associate with Bingham Greenbaum Doll LLP’s labor and employment practice group in Lexington, Kentucky, wrote that healthcare institutions have used a wide range of non-mandatory tools, such as providing free and convenient access to vaccination, issuing small incentives, or actively promoting the merits of vaccination through education, regular reminders, and other tactics.
“Positive incentives would eliminate potential infringements of health care workers’ rights and would likely remain cost-effective for participating health care institutions,” O’Donnell wrote.
“Whatever the employer’s preference, both mandatory and voluntary vaccination programs should be considered with legal counsel, and measures can be taken to significantly reduce the risk of litigation.”
Furthermore, the legal factors affecting your decision could vary drastically depending on the state in which you operate. Although their specifications differ, 18 states have flu vaccination requirements for hospital healthcare workers, according to a report prepared by the CDC Office for State, Tribal, Local and Territorial Support.
The CDC tracks various vaccination laws for flu and other conditions online.
Even if you settle on making the flu vaccine mandatory, you should still devote a considerable amount of time and energy to educating stakeholders on the importance of immunization, Prabhu says, citing his personal experience with Essentia’s policy change.
“It was more than just saying, ‘This is the new rule, and you have to follow it,’” he says. “I think we got a lot of buy-in from our staff, physicians, the public.”
Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.