Flu vaccine for health care workers: Liability factors

Sick employees risk to themselves and patients

The severe nationwide shortage of killed flu vaccine has put a stop, at least temporarily, to initiatives in some places that would force health care workers to be vaccinated or risk their jobs, but some health care experts warn that the solution advocated by at least one state — that health care workers forego the vaccine entirely so that more is available for higher-risk groups — could be dangerous to the very people it aims to protect.

The Centers for Disease Control and Prevention (CDC) updated the recommendations following the news that the nation’s supplies of flu vaccine would fall far short of need. The revised recommendations advise that "health care workers who take care of patients" should be among the population groups that should be vaccinated against the flu.

The CDC Advisory Committee for Immunization Practices (ACIP), which issues the vaccination recommendations, included health care workers who are in contact with patients in the groups that should be vaccinated because the health care workers are at higher risk of getting sick themselves, and because they are in contact with patients with influenza, are at a high risk of spreading the virus.

"Vaccinating a nurse or physician who is in contact with patients has a much greater effect than just the vaccination of that one individual," says Jane Siegel, MD, a University of Texas Southwestern Medical School professor specializing in pediatric infectious diseases and an advisory member of ACIP and the CDC’s Healthcare Infection Control Practices Advisory Committee. "You don’t just protect that health care worker. You protect everyone that health care worker comes in contact with. It has a very broad effect," she says.

The Minnesota Department of Health determined that vaccinating healthy health care workers is not the best way to utilize the limited resources of vaccine available and has recommended that all health care workers forego the flu vaccine until the shortage is eased.

"The goal of vaccination is to prevent severe complications in those patients at the highest risk, and we didn’t have enough vaccine to reach those high-risk groups and to vaccinate health care workers," says Kristen R. Ehresmann, RN, MPH, section chief in the Immunization, Tuber-culosis, and International Health Section of the Minnesota Department of Health in Minneapolis. "The state had to step in because the facilities that had [received their full supplies of] vaccine weren’t looking at sharing to ensure that as many high-risk patients as possible were covered," she explains.

Ehresmann says the state has encountered resistance from facilities who had vaccine and wanted to vaccinate their clinical staff. "But we in public health had to advocate for the public health in general, not just the health of health care workers," she continues.

Siegel says the approach taken by Minnesota and other areas and facilities that are not vaccinating clinicians "is a very disappointing thing. I don’t think that was at all the intent of the CDC," she notes. "It’s not appropriate to encourage health care workers to not take the vaccine."

FluMist an option

Ehresmann and Siegel agree that health care workers — such as any healthy adults younger than 50 who aren’t in contact with immunocompromised patients or relatives — are good candidates for use of the inhaled vaccine FluMist. "Use of FluMist is an alternative for anyone not working in a high-risk population, such as bone marrow transplant patients," Siegel points out.

Minnesota is encouraging health care workers who can take the FluMist vaccine to do so. "And as we get more flu vaccine — as we hope to do — we’ll vaccinate health care workers," Ehresmann says. "We are hoping we’re asking them to merely defer getting the vaccine, not forego it entirely."

Unvaccinated nurses and other health care workers often are the source of influenza for their patients in health care settings. Nurses working in settings already strapped for manpower frequently continue to work when suffering with influenza, in an effort to not burden their co-workers.

"Health care professionals have a responsibility to receive the vaccine," explains Herman I. Abromowitz, MD, a member of the American Medical Association board of trustees. "Health care professionals run a high risk of exposure and can transmit the virus to patients. The risks are great to ourselves, our families, and our patients," he adds.

"Especially disheartening is the mortality reports of patients with nosocomial influenza as a result of refusal by health care personnel to have their annual required influenza immunization," says Nancy Bjerke, BSN, RN, MPH, CIC, a consultant with Infection Control Associates in San Antonio. "Some would classify this occurrence as a sentinel event due to willful noncompliance."

Abromowitz cites studies that indicate vaccination of health care workers in nursing homes has been associated with fewer deaths from influenza in the nursing home populations studied. For this reason, he says, "even healthy people, if they come into contact with those vulnerable [to serious flu-related complications], should receive the vaccine."

A risk secondary to transmitting the disease is the staffing burden worsened by staff who must stay home with the flu. Because health care workers with the flu are advised to stay home when sick, the result can be added stresses to noninfected staff. The manpower shortage translates to reduced delivery of health care, and staffing shortages have been linked to poor patient outcome, Siegel says.

A just-as-unappealing alternative is that health care workers whose facilities are already short-handed will take over-the-counter medications to ease their symptoms and will come to work sick, risking infecting more co-workers and patients.

There currently are no states that require health care workers to be vaccinated against influenza. Massachusetts is among several states that are pushing for mass immunization of health care professionals. The National Foundation for Infectious Diseases earlier this year issued a call for greater immunization rates among health care professionals, and the Massachusetts Department of Public Health is exploring the idea of making the flu vaccine mandatory for doctors in the state.

Not an easy sell

Even in years when the flu vaccine has been plentiful, the nationwide vaccination rate among health care workers has averaged about 38%. The reasons for the low compliance rate are the same as for the general population — from apathy, to fear of contracting the virus from the vaccine, to fear of other side effects.

Because there are no universal mandatory regulations for immunizing clinicians against the flu, mandating vaccinations has not been easy for facilities that have attempted it. While the CDC has long included health care workers on its list of those who should be immunized each year, obstacles include the individual rights of the clinicians and questions about what happens when a the vaccine is not an option because the clinician has an allergy to eggs (flu vaccine is grown in egg media), has a history of Guillain-Barré syndrome, or is running a fever.

The vaccine shortage came along just in time to derail, at least temporarily, a fight brewing in Seattle that started when Virginia Mason Medical Center attempted to become the first facility in the country to make flu shots mandatory for its staff and volunteers.

In eligible employees (those for whom the vaccination was indicated), compliance with the vaccination was linked to continued employment. The state nurses’ union reacted swiftly, filing suit in federal court seeking to stop the vaccination program.

Virginia Mason administrators said the mandated vaccines were merely good medicine — that by requiring the vaccine, it would boost the facility’s overall vaccination rate from 55% of workers to 100%, protecting more patients.

"This new policy will save lives," Robert M. Rakita, MD, infectious disease section head at Virginia Mason, announced in a press release in early October. But Virginia Mason only received about one-fourth of the amount of vaccine needed, and Rakita and the facility were forced to put their staff vaccination program on hold. "Virginia Mason places a high value on patient safety and believes a medical center staff flu vaccination requirement can save lives," he adds. "But because the U.S. flu vaccine supply has been cut in half, we will not implement our 100% staff flu immunization program this year."

What risks are there for facilities whose employees become ill, and what legal standing do they have to require immunizations? What legal recourse do employees have who want to refuse vaccines?

As far as a facility’s responsibility to protect patients and other employees from contracting the flu from a sick worker, "I think the ethical implications are that ill employees must be tested with rapid flu nasal swab; and if they are negative, they work, and if they’re not [negative], they do not," says James R. Hubler, MD, JD, clinical assistant professor of surgery at the University of Illinois College of Medicine at Peoria.

"Even universal precautions in a high-risk population may not provide enough protection," he explains. "A [facility] that does not protect its patients would be at risk for lawsuits, but it would be nearly impossible to prove that they contracted the disease from a health care provider and not [out in the community]."

There is some scant case law pertaining to institutions’ responsibilities should employees become ill as a result of a facilitywide immunization process. In one case in Louisiana, Guillory v. St. Jude Medical Center, a health care technician was ruled to be due workers’ compensation because she developed encephalomyelitis triggered by a hepatitis vaccination administered by her employer, and the inoculation program was within the scope of her employment. In a related case in Texas, a firefighter who became incapacitated from a swine flu vaccination was awarded workers’ compensation, even though he received the vaccination voluntarily because his job was considered critical to the community in the event of a swine flu epidemic and the city offered the vaccine to these critical employees.

In the case of the Virginia Mason mandatory vaccination plan, a spokesperson for the nurses union that represents the 600 nurses at Virginia Mason says, while nurses support the idea of vaccinations, the issue in this case is one of workers’ rights.

"Federal and state laws require that, if you’re going to change a working condition — which requiring this vaccination is — the employer must bargain with the union," notes Barbara Frye, BSN, RN, director of labor relations for the Washington State Nurses Association.

The CDC plans to focus attention on the health care community prior to the next flu season in hopes education will prompt a greater number of workers who come in contact with patients to voluntarily be immunized.

For more information, contact:

  • Herman I. Abromowitz, MD, AMA Foundation, 515 N. State St., Chicago, IL 60610. Phone: (312) 464-5357.
  • Nancy Bjerke, BSN, RN, MPH, CIC, Consultant, Infection Control Associates, San Antonio. E-mail: nancy@icabjerke.com.
  • Kristen R. Ehresmann, RN, MPH, Section Chief, Immunization, Tuberculosis, and International Health Section, Minnesota Department of Health, 717 Delaware St. S.E., Minneapolis, MN 55414. Phone: (612) 676-5707. E-mail: kristen.ehresmann@health.state.mn.us.
  • Barbara Frye, BSN, RN, Director, Labor Relations, Washington State Nurses Association, 575 Andover Park W., #101, Seattle, WA 98188. Phone: (206) 575-7979.
  • James R. Hubler, MD, JD, Clinical Assistant Professor of Surgery, University of Illinois College of Medicine at Peoria. E-mail: James.R.Hubler@osfhealthcare.org.
  • Robert M. Rakita, MD, Department Head, Infectious Disease Department, Virginia Mason Medical Center, 1100 Ninth Ave., Seattle, WA 98101. Phone: (206) 341-0846.
  • Jane Siegel, MD, UT Southwestern Medical Center at Dallas, 5323 Harry Hines Blvd., Dallas, TX 75390-9063. Phone: (214) 456-6000.