Opponents of Rhode Island’s Flu Shot Rule Ponder Challenge as Deadline Nears

The following is a reprint from the  Occupational Safety & Health Daily 11/07/2012, posted to further the reach of the article to our members.

Key Takeaway: Barring a challenge from unions and civil liberties advocates, health care workers in Rhode Island have until Dec. 15 to comply with a new state requirement that they get flu shots.
By Robert Iafolla
Time is running short for organized labor and civil liberties advocates in Rhode Island who are deciding whether to challenge the state’s first-of-its-kind requirement that all health care workers get flu shots by Dec. 15.
The Ocean State chapters of the Service Employees International Union and American Civil Liberties Union, as well as the United Nurses and Allied Professionals, told BNA that they are considering filing a lawsuit or seeking a legislative fix.
But the latter is practically impossible before the vaccination deadline, as Rhode Island’s Legislature is out of session, meaning lawmakers would have to convene a special session just to consider a flu-shot bill, UNAP President Linda McDonald told BNA Nov. 2.
State Flu Immunization Mandate
Rhode Island’s Department of Health launched its flu vaccination mandate in October. Those health care workers who refuse shots are required to wear surgical masks when interacting with patients during periods of declared flu emergencies; failing to do so can incur a $100 fine per violation and possible loss of license.
“Those who care for and interact with patients in a health care setting have a duty to protect the health and safety of those for whom they care,” Michael Fine, director of Rhode Island’s Department of Health, said in a prepared statement when the rule was enacted.
Fine told BNA Nov. 5 that the vaccination rule would be “easily defendable” in court. Although the ACLU and labor unions would be adversaries if they file a lawsuit, Fine said that he thinks of them as “colleagues and collaborators” in establishing the vaccination mandate.
While Rhode Island is the only state with a flu immunization requirement for all health care workers, Colorado’s Board of Health issued a rule in February that set minimum vaccination rates for employees at hospitals and other health care facilities. The rates increase from 60 percent this year to 75 percent in 2013, and finally 90 percent in 2014 and every year thereafter.
Vaccination Requirements Spread
Hospitals first started mandating flu vaccination for their employees in 2005. Despite union resistance, those requirements have proliferated over the past half-dozen years. About 55 percent of hospitals nationwide require employees to get flu vaccinations, according to a Centers for Disease Control and Prevention survey of 800 hospitals published in the December 2011 issue of Clinical Infectious Diseases.
No state has enacted legislation requiring flu shots for health care workers, according to a data base maintained by the CDC. The regulations in Rhode Island and Colorado were created through departmental rulemaking.
California lawmakers passed a flu shot law earlier this year, but Gov. Jerry Brown (D) vetoed it in October (191 OHD, 10/3/12).
Health officials in a handful of counties, including San Francisco and Sacramento counties, have instituted shot-or-mask rules for health care workers.
Union Does Not Fear More Mandates
Bill Borwegen, the SEIU’s occupational health and safety director and a vocal critic of mandatory flu shots, was not concerned about the possibility of other states following Rhode Island’s lead.
“I think there’s going to be a backlash and these regulations are going to go the way of the dinosaur,” Borwegen told BNA Nov. 2. “These regulations are essentially massive overreaches to promote a vaccine that’s only 59 percent effective.”
Borwegen’s 59 percent figure comes from an October report by the Center for Infectious Disease Research & Policy at the University of Minnesota that said flu vaccination is not as effective as the public generally believes or immunization advocates claim. The report estimated vaccines are 59 percent effective for healthy adults, compared to the 70 to 90 percent rate that’s frequently cited.
In addition to questions over the effectiveness of flu shots and concerns about the government forcing workers to undergo an unwanted medical procedure, opponents of Rhode Island’s flu shot rule questioned the logic behind making workers wear masks if they turn down vaccination.
“Forcing people to wear masks is ineffective at best and punitive and arbitrary at worst,” Deborah Burger, co-president of National Nurses United, told BNA Nov. 2.
Opponents also noted that masks can be counterproductive in some health-care settings, such as psychiatric care.
New York Flu Shot Rule Withdrawn
In 2009, labor and civil liberties advocates defeated New York’s flu-shot mandate. Then-Gov. Gov. David A. Paterson (D) withdrew the requirement after a state court judge blocked it with a temporary restraining order.
Opponents of the New York rule made a broad series of legal challenges. They alleged the rule violated workers’ constitutional protections on due process, religious, and privacy rights, and also claimed that New York health officials abused their authority by foisting the rule on workers without going through the proper administrative procedure.
In contrast to New York’s rule, which was issued as an emergency regulation amidst the H1N1 virus outbreak, Rhode Island’s rule was modified in response to objections voiced at open meetings, with officials dialing back the mask requirement for those who refuse shots to just during declared flu emergencies.
But Hillary Davis, a policy associate with the ACLU in Rhode Island, told BNA Oct. 31 that a lawsuit against the state mandate could be brought on both procedural and substantive grounds.
For more information:
The Rhode Island rule for health care worker vaccination is available at http://sos.ri.gov/documents/archives/regdocs/released/pdf/DOH/7083.pdf.

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