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First state flu shot mandate at center of legal battle

A union is suing Rhode Island over a regulation requiring all health workers to receive influenza vaccine or wear masks while they're working.

By — Posted Jan. 14, 2013

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The Rhode Island Dept. of Health is asking a federal judge to throw out a lawsuit challenging its recently issued mandate that health care employees receive the influenza vaccine.

SEIU Healthcare Employees Union District 1199 sued the health department in early December 2012 over the rule, which went into effect in October 2012. The union claims that the regulation violates workers' due process rights and says no valid medical evidence shows vaccinating employees against the flu protects the health of patients.

The health department says the suit, filed in the U.S District Court for the District of Rhode Island, has no merit. The union has failed to establish any likelihood of success on its claims, Michael Fine, MD, the department's director, said in a Dec. 27, 2012, motion to dismiss.

The health department “has a legitimate interest in preventing the spread of influenza through health care workers with direct patient contact at licensed health care facilities,” Dr. Fine stated in court documents. “The regulations promulgated by our [department], after notice and opportunity to be heard, are rationally related to promoting the state's interest in preventing the spread of influenza through health care providers.”

The Rhode Island mandate took effect Oct. 26, 2012, as the 2012-13 flu season was starting. Under the regulation, health care workers who have direct contact with patients must be vaccinated against seasonal influenza. Employees with medical contraindications to the flu vaccine must submit medical exemptions each year to the facilities where they work. Individuals who choose not to receive the immunizations for other reasons must wear surgical masks when they have contact with patients during periods of widespread flu.

The requirement is the nation's first statewide flu shot mandate for health professionals. In other states, such mandates have been set by individual employers, such as hospitals and health care centers.

Union: Mandate intolerable

SEIU Healthcare Employees Union supports voluntary flu shots for health care employees, said Barbara Cotta, a union spokeswoman. However, workers should not be forced to take the vaccine, she said.

“The single principle of medicine is that you don't force people to take medicine,” she said.

Requiring workers who don't get the shots to wear masks for long shifts and under stressful conditions is intolerable, she said. In its complaint, the union alleges that the mask provision prevents adequate communication between employees and patients, and interferes with workers' rights to “pursue their profession” as part of the due process clause of the U.S. Constitution. In addition, making only some health care employees wear masks violates employees' equal protection rights, the suit said.

The Rhode Island Medical Society has not taken a formal position on the requirement and is not involved in the lawsuit. The society has members who come down on both sides of the issue and wants to remain neutral, said Steven R. DeToy, director of government and policy affairs for the medical society.

“We certainly understand the desire to have everyone immunized, and we do have other mandatory immunizations in the law,” he said. “It's a worthy goal, but we thought that educating each hospital and working with their medical staff and professional unions could have gotten this done without a mandatory regulation.”

The American Medical Association has policy that supports universal influenza vaccination of health care workers. The Association encourages hospitals, health care systems and others to immunize employees under guidelines set by the Centers for Disease Control and Prevention's Advisory Committee on Immunization Practices to reduce the risk of transmission to others. Nearly 63% of all health care workers had been vaccinated as of November 2012, according to CDC data.

Indiana hospital fires workers over flu shots

In Indiana, a similar debate is brewing after several employees were fired from Indiana University Health Goshen Hospital for refusing mandated influenza immunizations. The hospital's flu program, which became mandatory in 2012, includes religious and other exemptions for employees. However, the terminated workers did not meet acceptable criteria for such exemptions or missed the deadline to receive the vaccine, the hospital said in a statement.

The Assn. of American Physicians and Surgeons has spoken out against the terminations, saying the firings violate the employees' religious freedoms. The AAPS is a conservative physician organization that generally advocates against government mandates.

“When allowed freedom to decide, more than half of medical workers decline annual flu vaccine,” Jane M. Orient, MD, the AAPS executive director, said in a statement. “If people can't reject the product, where's the incentive to develop better, more extensively tested products?”

In a statement, IU Health said all employee requests for exemptions were taken seriously and considered either by a medical panel of experts or by a religious exemption panel. Employees also were allowed to appeal the final medical decisions, in which cases the decisions were reviewed by a statewide panel of experts.

Employees who failed to receive the vaccine by the Dec. 15, 2012, deadline were given a warning, then suspended and finally terminated if they still failed to comply, the hospital said.

“IU Health respects its employees but will not compromise patient health and safety,” the health system said in its statement. “Hundreds of health care systems across the country have implemented mandatory programs to vaccinate employees against influenza. IU Health is committed to being among the leaders taking this important step to safeguard patient health and safety.”

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