Is it a mandate — or just a requirement?

Federal recs leave flexibility on flu shots

A federal advisory panel gave a boost to policies that require health care workers to receive the flu vaccine but stopped short of endorsing the strongest mandates. If health care employers can't achieve an influenza vaccination goal of 90% "in an efficient and timely manner," then they should "strongly consider an employer requirement," a subgroup of the National Vaccine Advisory Committee (NVAC) said.

Overriding objections by the nation's leading occupational health agency, NVAC approved the recommendation and sent it to the Department of Health and Human Services (HHS) for final approval. HHS approval would raise several implications, but certainly it would give hospitals considering mandatory vaccination policies a top-level federal recommendation to proceed.

Though it is left to individual facilities to define their policy parameters for exemptions (religious objections, etc.), NVAC rejected the strong objections expressed by the Occupational Safety and Health Administration (OSHA). However, with the support of all the major infectious disease and infection control groups behind it, NVAC voted 12-2 (1 abstention) to green light the recommendation and four others.

The recommendation appears to be intentionally vague in its timeframe and its definition of "employer requirement." Some employers allow exemptions for philosophical or "personal belief" objections and some do not. Some have consequences for failing to receive the vaccine, such as mask-wearing during patient care or even termination, and some have no consequences.

"It should be a decision made by an employer and facility," Christine Nevin-Woods, DO, MPH, executive director of the Pueblo City-County Health Department in Colorado and co-chair of the Health Care Personnel Influenza Vaccination workgroup, said in a webinar presentation. "This maintains flexibility for employers to make policies based on local resources and patient safety [concerns]."

Occupational health professionals welcomed that flexibility. "At first blush, it may seem to people that if you can't get to 90% you should mandate flu vaccine. That's really not what it says if you read it closely," says Melanie Swift, MD, medical director of the Vanderbilt Occupational Health Clinic and a member of the workgroup.

"The definition for employer requirement that the group created is pretty broad and allows the employer to determine what their requirement and consequences are going to be. I think that flexibility is absolutely crucial," she says.

"There are places where a mandatory vaccine program can work. That's fine for those places. There are places that have different organizational cultures and different organizational structures where that's just not feasible at all. There are variable levels of desire to mandate a vaccine, given the limitations of the current vaccine," she says.

OSHA: HCWs shouldn't face termination

Yet the recommendation for an employer requirement — and even the pressure to meet a goal of 90% vaccination — remains controversial.

OSHA urged NVAC to withdraw the recommendation for an employer requirement because it did not state that health care workers should not be terminated for failing to receive the vaccine.

"OSHA believes that there must be a very high burden of proof that mandatory-taking programs are not just desirable, but also necessary to protect the public health before the government promotes such a controversial policy that may result in employment termination," the agency's deputy assistant secretary, Jordan Barab, said in written comments. "At this time, OSHA believes there is insufficient evidence for the federal government to promote mandatory influenza vaccination programs that may result in employment termination."

OSHA suggested that employers should be mandated to offer the vaccination as well as influenza education.

Unions that represent nurses and other health care workers also decried the recommendations that they said would become a defacto rule, turning a Healthy People 2020 goal for 90% influenza vaccination of health care workers into a requirement.

"They're trying to take a goal and turn it into rulemaking, outside of the federal practice and procedure," says Bill Borwegen, MPH, occupational health and safety director of the Service Employees International Union (SEIU) in Washington, DC.

The Joint Commission accrediting body has already incorporated the 90% goal in its infection control standard, requiring hospitals and other health care facilities to create plans that are "consistent with achieving" that goal.

What's in a requirement?

It's not clear how much impact the NVAC recommendation on employer requirements may ultimately have. Hospitals with widely varying policies could all claim to have an "employer requirement."

For example, the Mayo Clinic in Rochester, MN, attained an 88% vaccination rate by early January. Mayo has mandatory compliance – but not mandatory vaccination. Employees must receive their vaccine or view an education module and electronically sign a declination statement by the end of January.

"They were sufficiently vague, and I think appropriately so, to allow each institution to determine what they consider to be a requirement," says Bill Buchta, MD, MPH, medical director of Mayo's Occupational Health Service. "I don't think we can be nationally prescriptive on that."

A survey of 808 hospitals found that 55% of those with consequences for failing to get the flu vaccine allowed personal belief exemptions. Hospitals that allowed non-medical exemptions had increases in their vaccination rates that were similar to hospitals that allowed only medical exemptions, the study found.1

By mid-November, about 78% of hospital employees had received the flu vaccine, according to a survey sponsored by the Centers for Disease Control and Prevention. Rates were much lower at long-term care facilities, reaching only 45%.

The NVAC recommendations may help promote influenza vaccination programs in nursing homes, says Jennifer Hilliard, MMH, JD, public policy attorney with LeadingAge, an organization of non-profit long-term care facilities. A member of the NVAC workgroup, Hilliard does not support mandates.

"If employers take this responsibility seriously, then persistent and effective education will produce results," she says.

She notes that long-term care facilities have difficulty retaining good employees, even in a difficult economy. A mandate that involved terminating employees who don't receive the vaccine would be especially troubling to some foreign-born workers, such as those from west Africa, she says. "They don't trust anything the government pushes because in their country there were nefarious purposes when the government was pushing something like that," she says.


1. Miller BL, Ahmed F, Lindley MC, and Wortley PM Increases in vaccination coverage of healthcare personnel following institutional requirements for influenza vaccination: A national survey of US hospitals. Vaccine 2011; 29:9398– 9403.