First do no harm: protecting patients through immunizing health care workers.

Author:Najera, Rene F.

INTRODUCTION A. Adoption of Influenza Vaccine Mandates I. WHY VACCINATE HEALTH CARE WORKERS AGAINST INFLUENZA? II: MANDATING VACCINES A. First Steps: Voluntary Mandates in Hospitals B. State Mandates C. Employer-initiated Mandates: Legal Limits III. EXEMPTIONS: WHAT IS REQUIRED? A. Medical Exemptions B. Religious Exemptions 1. Constitutionally Required? 2. Legally Required Under the Civil Rights Act of 1964? 3. Religious Exemptions: Constitutional Limits on Content 4. Valent v. Board of Review 5. State RFRAs IV. DISCUSSION: WHAT IS DESIRABLE IN VACCINE POLICY? V. CONCLUSION INTRODUCTION

Influenza is wrongly seen as a mild disease, but it can seriously harm and kill, especially but not exclusively within vulnerable segments of the population. (1) One step hospitals are increasingly taking to protect vulnerable patients is requiring their employees to get an annual influenza vaccine. (2) Opponents, unsurprisingly, attack this policy as harmful to employees' rights. This article examines the legal issues surrounding that policy.

During June 2014, a New Jersey Court of Appeals ruled that a hospital offering non-medical, religious exemptions from its policy of mandating influenza vaccines cannot deny unemployment benefits to a nurse whose opposition to the vaccine was based on secular reasoning. (3) While the case focused on unemployment benefits rather than the mandate itself, the court's reasoning in Valent v. Board of Review, Department of Labor suggested that if a hospital offers any non-medical exemptions from influenza vaccine mandates, it then needs to extend exemptions to any employee with concerns, and cannot limit exemptions to just those with religious objections. (4)

If other courts follow the Valent court's reasoning, hospitals wishing to impose immunization requirements may face a choice between not offering religious exemptions or not being able to enforce vaccination mandates. Even if other courts do not agree with Valent, hospitals should seriously consider whether it is prudent to offer any non-medical exemptions, since such exemptions are subject to abuse and are not legally or constitutionally required.

The ruling in Valent presents an opportunity to consider the legal issues surrounding mandatory vaccination of health care workers. We agree with Stewart and Cox that state mandates are a better choice than voluntary action by hospitals: they are more efficient, impose uniform requirements across providers, and provide more certainty to patients. (5) But as Stewart and Cox highlight, only a significant minority of states have adopted laws addressing this issue, and many of those laws (6) lack strong enforcement mechanisms and may therefore only loosely be considered vaccine mandates. Voluntary action taken by hospitals may serve as an important intermediate measure until states pass more effective legislation. Understanding the legal framework for both the statutory and the employer-based options--for example what can and cannot be done and where problems may arise--can help hospitals or legislatures better think through this issue.

  1. Adoption of Influenza Vaccine Mandates

    The last thing someone who is hospitalized needs is to contract another illness during their stay. Some illnesses are harder to avoid than others, but for others we have readily available vaccines. A prime example is the vaccine against seasonal influenza. Twenty states have statutes addressing influenza vaccination of health care workers, and more may follow. (7) In states without mandatory vaccination laws, some hospitals voluntarily require employees to be vaccinated out of the laudable desire to protect vulnerable patients against a dangerous disease. (8) Increasingly, hospitals around the country have adopted policies requiring health care workers to be vaccinated against influenza, with sanctions up to and including firing imposed against recalcitrant employees. (9)

    The influenza vaccine is not one of the most effective vaccines, (10) although it is not as ineffective as anti-vaccine websites like to pretend. This lack of effectiveness is not because scientists working on it are less competent than scientists working on other vaccines, but because it is objectively more difficult to produce. (11) The influenza virus mutates quickly, often rearranging its genes enough to trigger yearly epidemics in different regions of the world at different times. (12) Occasionally, the mutation will be severe enough that the whole of humanity is not immune at the same time, triggering a pandemic like the one recently seen in 2009. (13) Additionally, the influenza virus grows best--and slowly--in eggs rather than in tissue cultures like other viruses, though more recently some vaccines have been produced using mammalian and insect cell lines. (14) This results in a hefty investment in eggs for growing the virus, and given the time needed to grow the virus, it means that the strain that is to be grown must be picked carefully six months ahead of the next flu season. (15) This process sometimes leads to a mismatch between the vaccine strain and the strain that actually circulates during the annual flu outbreak. (16) In spite of all that, the vaccine, although not perfect, is our best protection against influenza. In good years, its effectiveness ranges from 60-70% (17)--a substantial reduction in the chances of contracting the disease. In bad years, it can be much less. For example, in the 2014-2015 influenza season, one of the strains mutated after the creation of the vaccine, leading to substantially reduced effectiveness--only 23% effective in completely preventing influenza across all age groups (although effectiveness was higher in children). (18) Still, 23% effectiveness is still higher than the zero percent non-vaccination provides. Even if the vaccine fails to prevent the disease completely, it can reduce its severity. (19) Also, it's an extremely safe vaccine. (20)

    A recent meta-analysis of twelve observational studies found that some research shows that health care workers, for the most part, agreed with mandates to get vaccinated as a condition of employment. (21) Almost all of the participants in one of the studies (96.7%) were of the opinion that being immunized protected the patients they served. (22) Indeed, a 1994-1995 study found that immunizing health care workers in a geriatric care facility reduced mortality from influenza in the elderly patients more than vaccinating the patients themselves. (23) A randomized controlled trial in 2000 found a similar effect. (24) With regards to patient populations other than the elderly, a 1997-2000 study of vaccine uptake and morbidity and mortality in a hospital in Virginia showed that increased vaccine uptake was associated with a lower number of nosocomial (hospital acquired) cases and deaths from influenza. (25)

    There is a strong ethical case for requiring vaccination of health care workers against influenza. This is based on health care workers' autonomous choice to work in a profession in which they care for vulnerable individuals, they have responsibilities to patients and the community, and the resulting high costs in lives and suffering if they spread influenza because they did not receive the vaccine. (26)

    However, while most health care workers understand and support the requirement to vaccinate against influenza, (27) a small minority opposes it. Some oppose it because of the opposition to mandates. (28) Others oppose it because of unfounded fears or anti-vaccine views. (29) This viewpoint is especially troubling from a health care worker: if a health care worker cannot trust something supported by evidence as extensive as that supporting the safety of vaccines, (30) how can they trust the rest of the medical care they are ostensibly providing? Furthermore, like the legal field, health care is a service profession. Those who enter the field choose a job in which their role is to serve and care for people who depend on and trust them. By making that choice, a person is accepting certain limits on their conduct. If they are unwilling to take the simple, safe precaution of an influenza vaccine to protect the vulnerable patients under their care (a protection that also protects them against a dangerous disease), a health care worker is, arguably, failing that service duty. (31)

    This Article explores the legal issues surrounding the influenza vaccine requirement for health care workers. It highlights that the requirement is in fact legitimate and legal, though collective bargaining can limit what employers facing unionized work forces can do unilaterally. We argue that while medical exemptions may be required and are arguably desirable, there is no legal or constitutional requirement to offer any other exemptions. It also highlights that if an employer wants to provide a religious exemption, they are subject to certain requirements that may make the exemption vulnerable to abuse or allow it to swallow the mandate.

    Part I sets the background by providing the data behind the employers' choice to require vaccinating against influenza. It demonstrates that the vaccine is safe and can help protect patients and save lives. Part II addresses the basic legality and constitutionality behind requiring influenza vaccines, the litigation surrounding it, as it has been until now, and what we know from other areas of the law. Part III examines the tricky question of whether an employer is required to offer a religious exemption. It highlights that a religious exemption is not required under our Constitution; (32) nor is it required under the Civil Rights Act of 1964. (33) It also suggests that there is a strong argument that states with a Religious Freedom Restoration Act (RFRA) do not require even public hospitals to offer a religious exemption. Part III also explains the limits on and requirements of hospitals that choose to offer a religious exemption from immunization...

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