Union nurses exempt from mandatory flu shots

VA Mason loses appeal, still vaccinates 98%

Nurses won the final round of litigation over the mandatory flu vaccination program at Virginia Mason Medical Center in Seattle. They cannot be required to have the vaccine as a condition of employment.

Still, the dispute hasn't deterred the hospital from its primary goal. Most of the nurses have stepped forward to take the vaccine voluntarily, helping the hospital achieve a hospitalwide vaccination rate of about 98%.

Virginia Mason's model remains more stringent than any in the nation, but there are some signs that hospitals are moving toward stricter requirements for health care workers to receive annual flu vaccines. At least one other hospital has adopted a mandatory stance.

"More hospitals are actually seeing it as a safety/quality issue now, realizing how important it is and trying to figure out what they can do about it," says Sarah Patterson, MHA, FACMPE, executive vice president and chief operating officer of Virginia Mason.

For the Washington State Nurses Association, the issue is not about flu shots; it's a matter of respecting the union contract and collaborative vs. punitive measures. "Had they approached us, we would have been more than happy to work with them on [a flu vaccination] program," says Barbara Frye, RN, BSN, director of labor relations for the union. "We work with many hospitals and employers. We understand better than anyone why nurses don't get flu shots. [But] forcing people and threatening people is not the way to get people to comply."

Union leaders insist that hospitals can promote patient safety and the flu vaccine without mandatory programs. "If best practice is intimidating workers to get vaccinated, I just can't buy that," says Bill Borwegen, MPH, health and safety director of the Service Employees International Union (SEIU), which was not involved in the legal case. "Certainly, we would do everything in our power to recommend voluntary vaccination for our members. [But] to intimidate workers into getting vaccinated, we don't think that's the proper course of action."

'Fitness for duty'

Virginia Mason adopted the mandatory flu vaccination program in 2004, as the hospital's Infection Control Committee sought a way to substantially improve the hospital's vaccination rate. It had a bumpy start because of a flu vaccine shortage, but in 2005-2006, the hospital required the flu vaccine as a "fitness-for-duty" condition of employment.

Employees with allergies to vaccine components or other medical contraindications or religious objections received an accommodation, and the hospital offered a choice of the nasal spray or injection. About seven employees refused the vaccine and were terminated. (Frye asserts that other employees, including nurses, have left because of the mandatory vaccine program.)

The Washington State Nurses Association filed a grievance, stating that the hospital could not change a condition of employment without collective bargaining. An arbitrator agreed, and that decision was upheld by a U.S. District Court judge and a panel of the U.S. Court of Appeals. As a result, about 556 nurses are not subject to the mandatory vaccination. Forty-one of them declined the vaccine this year.

However, employees who don't receive the vaccine must wear a surgical mask while in patient care areas during the flu season and may be asked to take prophylactic antiviral medications during a flu outbreak.

"We will continue our requirement that anyone who hasn't had the immunization take the precautions," says Patterson. "That is just our infection control policy. We'll work with our nurses to continue our work on patient safety. We will make sure we're protecting our patients."

Employees have become accustomed to the vaccination rule, and there have been no further terminations since the first year, Patterson says. "They understand the expectation and they can make a choice not to come to work at Virginia Mason," she says.

No shot? Wear a mask

The Virginia Mason experience has had an influence on other hospitals around the country. Lakeview Medical Center, a 75-bed acute care hospital in Rice Lake, WI, vaccinated 85% of its employees last year, an impressive rate that is about double the national average.

But the hospital wanted to do even better. This year, a new hospital policy requires employees to receive the vaccine as a condition of employment, unless they have a note signed by a physician indicating they have a medical contraindication. Because the hospital is not unionized, they are able to implement the policy among nurses as well as other staff. (See policy.)

The policy does not specify that employees will be terminated if they refuse the vaccine. However, employees who don't receive the vaccine will be required to wear a mask, says Terri Ruppel, RN, BSN, CIC, an infection control nurse who also handles employee health.

Only one employee adamantly refused the vaccine, and that person does not work in patient care areas, Ruppel says. Otherwise, the hospital attained a 100% vaccination rate.

"As a committee, we decided this was important enough to pursue," says Ruppel. The committee gained administration support and found some champions among physicians and staff — including a couple of employees who missed a couple of months of work due to the flu and a physician whose niece died from complications of the flu.

Lakeview is becoming part of the Marshfield (WI) Clinic, which requires declination statements but does not have mandatory vaccinations. Yet Marshfield Clinic set a goal of 90% immunization of its staff. By January, the physician-led organization had vaccinated about 73% of its staff.

Marshfield focused on education and email reminders to boost participation. "It just amazes me how many people are not getting vaccinations, and the excuses they give are feeble," says Bruce Cunha, RN, MS, COHN-S, manager of employee health and safety. "It doesn't hit home. They just don't get it."

Some physicians at the Marshfield Clinic want to make the flu vaccine mandatory. "Why should our patients come in here and have the risk of getting a disease from our employees?" says Cunha.

But creating a mandatory vaccination program is a controversial proposition. "We shouldn't have to mandate it," says Cunha. "Every person who works in a health care facility should understand that they should do everything they can to keep themselves healthy."