Monday, December 9, 2013

Controversies over vaccines

The Princeton meningitis outbreak:
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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