SEIU sues to stop RI flu shot mandate

Vaccine or mask — or pay $100 fine

The toughest flu vaccine mandate in the country faces a legal challenge from the nation's largest union representing health care workers.

The Rhode Island Department of Health issued a rule in October 2012 that requires all health care workers who are not vaccinated against influenza to wear a surgical mask during all patient contact when the Director of Health declares that influenza is widespread. Michael Fine, MD, made the first such declaration on December 5.

Health care workers who do not comply can be fined $100 for each violation and sanctioned by the licensing board for "unprofessional conduct."

In a lawsuit filed on December 6, the Service Employees International Union (SEIU) called the rule "arbitrary, capricious and irrational" and asserted that the rule violates the U.S. and state constitutions as well as labor, privacy and equal protection laws.

There's no scientific evidence that flu vaccination of health care workers results in fewer cases of influenza or that wearing a mask during flu season protects patients, the SEIU said. Masks interfere with communication and might even increase the risk of transmission when health care workers touch their face to adjust the masks, the SEIU said.

"The first edict of medicine is, 'First do no harm.' Masking is harming the ability of health care workers to provide quality patient care," says Bill Borwegen, MPH, SEIU safety and health director.

The Department of Health does not comment on pending legal matters, spokesperson Dara Chadwick told HEH.

HCWs seek flu vaccine as season starts early

Vaccination rates continued to rise among health care workers this fall, a bright spot as public health authorities warned that this flu season could be worse than usual.

"What we're seeing in health care workers is encouraging," Thomas Frieden, MD, MPH, director of the Centers for Disease Control and Prevention told reporters in a conference call. "We've got 80% to 90% of health care workers...vaccinated this season."

The high vaccination rates are among pharmacists, physicians and nurses, Frieden said. "We need to do much better among allied health workers, aides and [in] other health care systems as well as in nursing homes," he said.

CDC reported a high level of influenza-like illness in five states in December and moderate levels of illness in two other states.

"This is the earliest regular flu season we've had in nearly a decade, since the 2003-2004 flu season, [not including the 2009 pandemic]," Frieden said. "That was an early and severe flu year, and while flu is always unpredictable, the early nature of the cases as well as the specific strains we're seeing suggest that this could be a bad flu year."

The prevailing strain in December was H3N2, which is associated with more severe illness, he said.

CDC is promoting universal vaccination — of everyone except babies 6 months or younger. By December, 123 million doses of vaccine were available. Frieden said the vaccine was well-matched with the prevailing strains.

While sounding the warning about the potential for a bad flu season, Frieden also noted that it is impossible to foresee the trajectory of influenza outbreaks.

"Flu is unpredictable," he said. "That's probably the most predictable thing about it."

Hospitals support mandate

The rule drew support from the hospital and long-term care industries in Rhode Island.

"All of our members are in support of the policy," says Amanda Barney, vice president of communications and administration at the Hospital Association of Rhode Island in Cranston. "By having a uniform policy, employees who work at multiple organizations know what the rules are no matter what.

"We applaud the director of the Department of Health for taking the lead on this issue," she says.

The 13 hospitals in Rhode Island had a health care worker vaccination rate of 73% in 2011-2012; the national rate for hospitals was 77%, according to the Centers for Disease Control and Prevention.

The long-term care industry also has adapted well to the new regulation, says Virginia Burke, president and CEO of the Rhode Island Healthcare Association in Warwick. "They asked us basically for 100 percent compliance immediately," she says. "I had advocated for moving a little more slowly and phasing it in."

Although some employees were unhappy about the new rule, the long-term care facilities did not see a spike in job turnover, Burke says. "A lot of people had said they would rather lose their jobs than accept a vaccine that they didn't believe in," she says. "But when it finally came down to it, they went ahead and got vaccinated."

Burke says she became convinced of the benefits of vaccination after reading some peer-reviewed articles that showed an effect in long-term care. For example, a randomized, controlled study in the United Kingdom compared 22 care homes in which about 48% of workers were immunized and 22 care homes with a vaccination rate of about 6%.1 There was lower mortality and fewer hospitalizations in the homes with higher vaccination rates in one study year (2003-2004) but not the next (2004-2005). (Influenza activity was low in 2004-2005.)1

Burke says she does have concerns about the impact of mask-wearing on patient care, particularly among patients with dementia. "But the fact that so many of our nurses and nurses' aides have been vaccinated has mitigated that concern," she says.

Unions win legal challenges

Other legal challenges to mandatory flu vaccination policies have succeeded. In Washington state, home of the first hospital to implement a flu vaccine mandate, the nurses' union prevailed in a labor grievance. The SEIU prevailed in an arbitration ruling against the University of Iowa Hospitals and Clinics, which then switched to a voluntary program. The University of Iowa Hospitals still attained an 86% vaccination rate.

The British Columbia Health Ministry in Canada recently backed down at least temporarily from a vaccine-or-mask mandate after three unions filed grievances. The British Columbia Nurses Union questioned the ties between a major proponent of the BC mandate and Novartis Pharmaceuticals, a manufacturer of flu vaccine.

The SEIU has been seeking to convince employers to boost vaccination through voluntary programs that emphasize education, Borwegen says. "Until we have clinical evidence that the vaccine is necessary to protect patients, we should be educating people to get the vaccine but we shouldn't be taking disciplinary action," he says.


  1. Hayward AC, Harling R, Wetten S, et al. Effectiveness of an influenza vaccine programme for care home staff to prevent death, morbidity, and health service use among residents: cluster randomised controlled trial. BMJ 2006; 333:1241-1244.