Union sues to stop RI flu shot mandate

Hospital groups back stringent approach

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 medical is, ‘First do no harm.’ Masking is harming the ability of health care workers to provide quality patient care,” argues Bill Borwegen, MPH, SEIU safety and health director.

The Department of Health declined to comment on pending legal matters. However, 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.”

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.

LTC workers get vaccinated

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%. 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.


  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.

Seasonal flu taking heavy toll on elderly

CDC: Overall vaccine efficacy is 62%

About 90% of the flu-related deaths thus far in the ongoing influenza season have been in people 65 and older, Tom Frieden, MD, director of the Centers for Disease Control and Prevention said at a recent press conference.

Forty-eight states report widespread geographic flu activity, and hospitalization rates have increased sharply in people 65 and over.

“[It is at a rate] of 82 per 100,000, which is really quite a high rate,” Frieden said. “Seasonal influenza always takes the heaviest toll on seniors when it comes to deaths, particularly during seasons when H3N2 is the predominant strain — as it is this year.”

In addition, nine more pediatric deaths bring the total this season to 29, the CDC reported.

“That’s well below the 153 deaths reported in the 2003-2004 season which was another H3N2 season, but as I say we’re only in the middle of our season and even a single death in a child is one too many,” he said. “We expect to see both the number and the rates of both hospitalizations and deaths rise further.”

The effectiveness of the current influenza vaccine is 62% and covers about 90% of the circulating virus, the CDC reports. Unfortunately, the very groups at greatest risk of flu infection also are less likely to mount an immune response following vaccination.

“That would include frail, elderly, people who may have had cancer, chemotherapy, people who may have immune systems that are weakened or be on medications that would weaken their immune system, including people who are on long-term oral steroid treatments for conditions that require that,” Frieden said. “It’s kind of the opposite of what we’d wish. The people who are most susceptible to severe influenza are also less likely to get the benefit that others get from the vaccine.”

To analysis the efficacy of the vaccine, the CDC looked at 1,155 children and adults in its flu effectiveness network program. “We found the overall vaccine effectiveness to be 62% — that means that if you got vaccinated you’re about 60% less likely to get the flu that requires you to go to your doctor. “That puts the vaccine efficacy in line with most seasons, which has been generally estimated year-in year-out at about 59%.

The vaccine covers for the two most common circulating A strains including Influenza A (H3N2), and one B strain of influenza. However, another circulating B strain is not in the vaccine, reflecting the limitations of the current manufacturing technology. “Within a year or two, we expect manufacturers to have on the market vaccines that have space for four different vaccine [strains] including two influenza B’s,” he said.