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Healthcare Personnel and Flu Vaccines: Current Policies and Legal Challenges

posted on Wed, Oct 28 2015 12:16 pm by Andy Baker-White

As we approach the end of October many of us are reminded about seasonal influenza. There are many ways to avoid the flu and prevent its spread including covering your cough, frequent hand washing, staying home from school or work when sick, and getting the flu vaccine. Getting a flu shot not only reduces a person’s chance of catching the flu, it also reduces the risk of spreading the flu to others. In addition, flu vaccination often decreases the severity of the flu if you do get sick resulting in less time spent home from work or school.

A recent CDC report reveals that 77.3 percent of surveyed healthcare personnel reported receiving the flu vaccine during the 2014–2015 flu season (up slightly from 75.2 percent in the 2013–2014 season). Many hospitals and health systems now require healthcare personnel (e.g., nurses, physicians) to get a seasonal flu vaccine. These policies are a way to increase healthcare personnel vaccination rates as evidenced by the same CDC survey showing that flu vaccine coverage is highest among healthcare personnel in settings where vaccination was required (96 percent), lower among healthcare personnel in settings where the flu vaccination was not required but promoted (73.6 percent to 83.9 percent), and lowest in settings where there was no requirement or promotion of the flu vaccine (44 percent).

While the Joint Commission, an accrediting body for healthcare organizations, does not stipulate that accredited organizations require employees to get annual flu shots, it does expect accredited organizations to establish an annual influenza vaccination program, offer or provide the vaccine to staff, set a goal to achieve a 90 percent vaccination rate by 2020, provide flu vaccination rate data to key stakeholders, and evaluate the reasons given for declining the vaccine. Despite the absence of a flu vaccine directive in the Joint Commission’s accreditation standards, healthcare organizations continue to adopt such policies. One reason they are doing so is because of the Centers for Medicare & Medicaid Services (CMS) requirement that they report influenza vaccination coverage for healthcare personnel through the CDC’s reporting system. The reporting of vaccination rates is tied to the Healthy People 2020 goal of achieving 90 percent coverage among healthcare personnel. For examples of hospital policies please see the “Health Care Personnel Influenza Vaccination Implementation Toolkit” a resource prepared by health organizations in Wisconsin, including the Wisconsin Hospital Association, Wisconsin Medical Society, and Wisconsin Health Care Association.

Legal challenges to the hospital vaccine directives are not uncommon, and many challenges have led to modifications in hospital policy. These challenges have generally been based on state and federal employment law with either claims of religious discrimination or collective bargaining violations. For example, In 2011 Sakile Chenzira sued Cincinnati Children's Hospital after being fired for refusing to get a flu vaccination. Chenzira claimed that the egg-based vaccine conflicted with her vegan beliefs. The case settled out of court but not before the judge denied the hospital’s motion to dismiss. The hospital argued that veganism is merely a social philosophy or dietary preference but the court ruled that veganism may be entitled to protection as a religion under U.S. Equal Employment Opportunity Commission regulations. The judge did not address whether the termination was justified to protect the safety of hospital patients. Had the case not been settled the question of justified termination would most likely have been answered at a later stage of the case.

Beyond hospital and health system policy, states and local authorities are also starting to establish flu vaccine requirements for healthcare personnel. The Rhode Island Department of Health, for example, used its authority to license health care facilities to issue rules requiring healthcare personnel in the state to get the flu vaccine or wear a mask during a declared "period in which flu is widespread." At the local level, the Alameda County Public Health Department and other local health departments in California have issued orders directing healthcare personnel flu vaccination or masking. Finally, local health departments are beginning to adopt flu vaccine directives for health department employees. For example, in September 2014, the Orange County Board of Health in North Carolina recommended making the annual influenza vaccination a condition of employment for health department staff.

Due to patient contact and working with infectious material, healthcare workers risk exposure to flu and transmitting flu to others. Health systems, hospitals, and healthcare personnel all have a responsibility to reduce the spread of flu to their patients and among their employees. As more organizations and governmental entities adopt flu vaccine requirements for their employees, the rates of influenza and costs of infection can be expected to decrease.  

This information was developed by Andy Baker-White, associate director for the Network for Public Health Law – Mid-States Region at the University of Michigan School of Public Health.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.

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