http://chronicle.com/blogs/conversation/2013/12/09/outbreaks-ethics-and-economics/?cid=pm&utm_source=pm&utm_medium=en
And mandatory flu shots:
With the flu season upon us again, a debate is raging over whether
vaccine inoculation should be mandatory.
For example, on November 14th, the British Medical Journal
published a
“Head to Head” debate between two eminent physicians taking opposite
positions. Dr. Amy J. Behrman,
medical director of Occupational Medicine Services at the University of
Pennsylvania, contended that in the healthcare environment mandatory
vaccination was necessary to safeguard vulnerable patients. On the other side of the question, an
emergency department nurse from the Vancouver General Hospital argued that the
evidence of effectiveness was still insufficient to outweigh healthcare
workers’ right to personal choice.
[http://www.sciencedaily.com/releases/2013/11/131114102601.htm]
Baltimore’s Johns Hopkins has adopted the following policy:
“In the spirit of safeguarding patients—as
well as you, our employees, faculty, physicians, staff and students—a mandatory
flu vaccination policy is being implemented across Johns Hopkins Medicine. This
is in line with a national movement to increase immunization rates among health
care workers. The enterprise is
looking for 100 percent compliance, and the policy applies to every
organization within Johns Hopkins Medical Institutions—including the schools of
medicine, nursing and public health.”
[http://www.hopkinsmedicine.org/mandatory_flu_vaccination/index.html]
By contrast, Dr. David Brownstein, editor of Dr. David Brownstein’s
Natural Way to Health, has been quoted
regarding mandatory shots, “This is absolutely outrageous. In fact, it’s beyond outrageous. They are forcing workers to take a
vaccine that has been shown to be worthless.” [Sylvia Booth Hubbard, “Forced
Flu Shots Are Outrageous: Top Doctor,” www.newsmaxhealth.com, October 24, 2013.]
In some
states, some populations have no choice in the matter. For example, New Jersey ended the
debate at the pre-school/Day-care level by becoming the first state to mandate
shots by mandate of the Garden State’s Public Health Council. [http://www.nj.com/news/index.ssf/2007/12/flu_shots_now_required_for_pre.html;
http://www.nytimes.com/2007/12/11/nyregion/11vaccine.html?_r=0]
What’s
a poor employer to do? The Philadelphia-headquartered law firm of Drinker Biddle
& Reath offers the following “Dos and Don’ts of Implementing a Mandatory
Flu Vaccine Policy:
- You should identify a
legitimate business reason for implementing such a policy. This justification might run to
your need to keep the business operational… a need that precludes a high
level of absenteeism driven by a flu bug sweeping through the
organization. Or it might be
based upon protecting the customer, as healthcare providers seek to
safeguard their patients, especially those whose immune systems are
weakened and vulnerable… or the N.J. Heath Departments determination to
protect youngsters in day-care facilities.
- Tailor the policy as
narrowly as reasonably possible.
You may have only limited populations of key employees whom you
can’t afford to have out all at one time or for extended illnesses. Some employers. Reports Drinker
Biddle, are choosing to only “strongly encourage” vaccination.
- Make sure you check any
collective bargaining agreement you happen to have with labor unions. The National Labor Relations Board
considers mandatory inoculation to be a mandatory subject for
bargaining. [See, e.g.,
Virginia Mason Hospital, 357 NLRB No.
53 (2006), accessible at http://www.nlrb.gov/case/19-CA-030154]
- Make sure you are willing
to engage in an interactive discourse with any employee who objects on
health-related grounds. If
for example, the employee claims to have an allergy that would result in
the vaccine possibly triggering an adverse reaction, the Americans with
Disabilities Act most likely is implicated in the transaction. Title VII also may come into play,
e.g., if the employee is raising a religious objection to the mandatory
shot. Some federal courts
have extended federal-law protection to sincerely held lifestyle choices.
[See, e.g., Chenzira v. Cincinnati Children’s Medical Center, 2012 WL 6721098 (S.D. Ohio, December 27,
2012)(veganism protected).]
- Enforce your policy
uniformly. For employees who
get the shot, make sure you have documentation. At my university, shots are offered free to all
employees. For those of us
who take advantage of this benefit, the records are made by the contractor
which administers the shots.
Additionally, HR has everyone sign a form waiving employer
liability. Shots aren’t
mandatory at my school. But
where they are, those who claim to have gotten their shots from family
physicians or at the local pharmacy should likewise be required to produce
documentation. Likewise,
those who are allowed to decline the vaccine should be made to execute a
waiver of employer affirming the fact that the employee is either unable
or unwilling to be inoculated for a legitimate reason.
- As I’ve suggested above,
Drinker Biddle also recommends making the shots available on-site.
- If the policy establishes
a mandatory program, work closely with you state and/or local public
health agency.
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