Healthcare Organizations Do Not Have the Right to

Mandate Flu Vaccinesto Employees

Roger Anderson, Leslie Burgy, Margie Pokorski, & Carolyn Sucaet

LDR 650 Medical Law

3-13-14

OVERVIEW

POSITION STATEMENTHISTORY OF FLU VACCINES, MANDATES, AND PRECEDENTS

WHY MANDATE?

EMPLOYEE PERSPECTIVE

VIOLATION OF PERSONAL FREEDOM AND CHOICE

NURSES AGAINST MANDATORY VACCINES -YOUTUBE VIDEO

CONCLUSION

POSITION STATEMENT

Healthcare Organizations Do Not Have the Right to Mandate Flu Vaccines to Employees

Hospital Flu Vaccine MandateCorrective Action, Termination

Applicable Laws, Regulatory Agency Positions, Research, and Ethical Theories Support Our

Position

HISTORY OF FLU VACCINES, MANDATES, AND PRECEDENTS

History of Vaccines

• The Joint Commission• The Centers for Disease Control (CDC)• U.S. Equal Employment Opportunity Center (EEOC)• The Occupational Safety and Health Administration (OSHA)

Jacobson v. Massachusetts, Seminal Case in immunization and Public Health Law, ruled that protecting public health took precedence over an individual’s freedom of choice

Government agencies do not mandate nor do they recommend that hospitals implement mandatory flu vaccines for their employees

EMPLOYEES ASK WHY MANDATE?

Low Effectiveness

• CDC 2012/13 56% effectiveness rate• Measles 99% effectiveness rate• Rubella 95-99% effectiveness rate

Unsupported Transmittal Rate

EMPLOYEE PERSPECTIVE

Hospital Fears Respondeat Superior

• Alternatives (e.g. masks) do provide obvious indicator which does constitute a privacy violation

Employee Consent is Coerced

HIPAA violation not an issue

VIOLATION OF PERSONAL FREEDOM AND CHOICE

Healthcare workers have the right to make informed, voluntary choices regarding vaccines

The National Vaccine Information Center (NVIC) does not advocate for or against vaccines but defends the right to exercise informed consent to medical risk-taking

IOM acknowledges an increased susceptibility for certain individuals that have unidentified genetic or other biological high risk factors for an adverse response

VIOLATION OF PERSONAL FREEDOM AND CHOICE

Mandatory vaccination policies without exemption penalizes those holding religious and conscientious objections to vaccination

• Provides exemption for religious beliefs• 2014 Class action lawsuit filed in Michigan • Pregnant nurse fired for refusing vaccination

Civil Rights Act, Title VII

NURSES AGAINST MANDATORY VACCINES

(NAMV) YOUTUBE VIDEO 1-25-14

http://www.youtube.com/watch?v=XI-LcawkWUg

CONCLUSION

Legal Status is Tenuous

• Civil rights & religious challenges• Privacy challenges• Questionable efficacy• No legal mandate in most states

Affordable Care Act Standard

• Impacts financial incentives!!

OUR POSITION: NO MANDATES FOR FLU VACCINES!

Center for Disease Control. (n.d.). Influenza vaccination information for health care workers. Retrieved from http://www.cdc.gov/flu/healthcareworkers.htm

Childs, D., & Kansagra, S. (2007, September 20). 10 health advances that changed the world. ABC News. Retrieved from http://abcnews.go.com/Health/TenWays/story?id=3605442

Coughlin, C. N., King, N. M., & Kemper, K. (2010). When doctors become "patients": Advocating a patient-centered approach for health care workers in the context of mandatory influenza vaccinations and informed consent. Wake Forest Law Review. Wake Forest Law Review Association, Inc.Health Impact News. (2013). Are Mandatory Flu Vaccines for Healthcare Workers part of Obamacare and Linked to Financial Reimbursement to Healthcare Facilities? Retrieved February 25, 2014, from Health Impact News: Are Mandatory Flu Vaccines for Healthcare Workers part of Obamacare and Linked to Financial Reimbursement to Healthcare Facilities?Kong, S. (2011). A winter predicament global uptake of the flu jab is low but, argues susie kong,

compulsory vaccination is not the answer to cutting infection. Nursing Management,18(7), 9.

REFERENCES

Law Offices of James Elsman. (2014, January 24). PR Newswire. Retrieved February 12, 2014, from PR Newswire Services: http://www.prnewswire.com/news-releases/ law-offices-of-james-elsman-announces-suit-nurse-refuses-shots----sues-hospital-federal-and-state-

governments-for-100000000-claiming-flu-shots-have-many-dangers-and-questionable-advantages-241470971.html

Malloy, A. (2013, December 29). Pregnant nurse: I was fired for refusing flu vaccine. CNN Health. Retrieved from http://www.cnn.com/2013/12/29/health/pregnant-nurse-flu-vaccine-refusal/

Mastroianni, Peggy R. (2012, March 5). Title vii: Religious Accomodation. EEOC informal discussion letter, 1-5. Retrieved from http://www.eeoc.gov/eeoc/foia/letters/2012/religious_accomodation.html

Mercola, J. (2012). Tell your doctor: If you don’t show me this, you’re breaking the law. Retrieved from http://www.article.mercola.com/sites/articles/archive/2012/03/25/defending- vaccine-exempt.qspx

National Vaccine Advisory Committee (NVAC). (2011, September 13-14). National Vaccine Advisory Committee (NVAC) September 13–14, 2011, Meeting Minutes . Retrieved February 25, 2014, from United States Department of Health and Human Services: http://www.hhs.gov/nvpo/nvac/meetings/pastmeetings/nvac_meeting201109_certified-minutes.pdf

REFERENCES

Randall, L., Curran, E., & Omer, S. (2013). Legal considerations surrounding mandatory influenza

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Newswire. (2012). Joint commission r3 report explains new flue vaccine requirements.

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Vaccinating health care workers against influenza: The ethical and legal rationale for a

mandate. American Journal of Public Health, 101(2), 212-216.

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Randall, L., Curran, E., & Omer, S. (2013). Legal considerations surrounding mandatory influenza

vaccination for healthcare workers in the united states. Vaccine, 31, 1771-1776.

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Administration Press.

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mandatory flu vaccination policies for heatlh care workers being difficult to justify. Health Law

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