Is It Legal to Make Flu Shots Mandatory for Health Care Professionals?

00011_RT8By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The warnings have been loud and clear from the Centers for Disease Control and Prevention (CDC). This influenza season is off to an early and serious start. With that in mind, a number of states are requiring all health professionals in the state to receive the flu vaccination. Some of those opposed to getting vaccinated are being fired by hospitals and health facilities. Because of this, a controversy is arising between employee rights and patient safety, according to a number of news sources.

Click here to read more on this year’s flu season from the CDC.

Mandatory Flu Shots to Keep Patients Safe.

In December 2010, the Department of Health and Human Services (DHHS) announced a 10-year agenda to improve the nation’s health. It’s called Healthy People 2020. A part of this agenda calls for a ninety percent (90%) average vaccination rate of health professionals. Click here to read the press release on the Healthy People 2020 initiative from the DHHS.

According to an American Medical News article, there’s a push in the medical community to meet this goal as soon as possible. The CDC states that as of November 18, 2011, close to eighty-four percent (84%) of doctors in the U.S. had been immunized against influenza. The CDC is praising these doctors for this high number, hoping other health professionals and the public will follow suit.

The safety of patients is the chief reason for the mandate. In an ABC News article, one Indiana hospital said that it implemented the mandatory vaccine in September of 2012, to promote patient safety. Of the hospital’s 26,000 employees statewide, ninety-five percent (95%) have complied.

Health Care Professionals Are Fired If They Refuse to Get the Vaccine.

A large majority of employees at the Indiana hospital complied with the mandate; however, 1,300 employees did not. According to ABC News, eight employees, including at least three veteran nurses, were allegedly fired because they refused to get a flu vaccine.

The fired nurses are standing their ground, saying they should have the right to refuse the flu vaccine. One nurse had filed two medical exemption requests, a religious exemption request and two appeals. All were denied by the hospital. To read more on this story from ABC News, click here.

In October 2012, Rhode Island mandated immunizations for all health care workers who have patient contact. On December 6, 2012, a health care worker union filed a federal lawsuit against the Rhode Island Department of Health (DOH) to prevent it from implementing the regulations, according to a Fierce Healthcare article. Click here to read the entire Fierce Healthcare article.

Arguments Against the Flu Shot.

The attorney representing the Indiana nurses, who were fired, states that his clients had the right to refuse their flu shots. He argues Title VII of the Civil Rights Act of 1964 prohibits religious discrimination against employees. The attorney is suggesting religion is legally broad under the First Amendment, so it can include any strongly held belief. According to a Chicago Tribune article, in 2009 New York mandated flu shots for all health workers, during the H1N1 outbreak. Unions fought the issue in court, and the state has since relaxed the rule.

The Flu in Florida.

I’ve recently received calls from several local health care professionals working in different Florida hospitals, regarding refusing flu shots and other vaccinations. I’ve also read the news stories about Tampa General Hospital and Moffitt Cancer Center in Tampa requiring employees to receive the influenza vaccine. According to the news articles, the two Tampa health facilities require employees who refuse the flu shot to wear surgical masks.

However, the states and hospitals may not back down in this case. The issue may have to be decided by the courts. I promise to write more on this topic later.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

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To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

What do you think of mandated flu shots for health care workers? Is receiving a flu shot mandatory at your job? As a health care professional, do you think it is important to receive a flu shot? Is there enough medical evidence to justify firing health care professionals for not receiving the flu shot? Please leave any thoughtful comments below.
Sources:

Lupkin, Sydney. “Nurses Fire for Refusing Flu Shot.” ABC News. (January 3, 2013). From: http://abcnews.go.com/Health/indiana-hospital-fires-nurses-refusing-flu-shot/story?id=18116967

Moyer, Christine. “More Physicians on Track to get Flu Shots.” American Medical News. (December 14, 2012). From: http://www.ama-assn.org/amednews/2012/12/10/hlsb1214.htm

Cheung-Larivee, Karen. “Health Unions Sue Over Mandated Flu Shots.” Fierce Healthcare. (December 10, 2012). From: http://www.fiercehealthcare.com/story/health-unions-sue-over-mandated-flu-shots/2012-12-10

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

6 responses to “Is It Legal to Make Flu Shots Mandatory for Health Care Professionals?

  1. The requirement has a good rationale in protecting the public. But nobody has the right to inject a foreign body to another’s without his consent. If one works in a hospital that requires a flu vaccine, we think that all the CEOs, VPs, COO, CNO, Supervisor and the entire Administration (100%) must be injected with the flu vaccine in front of the healthcare workers (or televised/videotaped) with the RN injectors coming from another hospital. (who knows if its just water only?). Only if this happens should they mandate the hospital staff to get one. And if something happens to the staff worker because of the flu vaccine, the hospital should pay for the damages. But I don’t think the entire administration can do this. At least one or a few would refuse the vaccine, and then they should be fired first.

  2. Florida – BayCare Health System has just advised it’s employees that they will have to get the flu shot or wear a mask.

  3. mandating any forced medical procedure…injections included….is against the basic pt rights and responsibilities that we promote……and they are requiring those injected sign a release of liability….in case ?????????? loss of another “right” to get persons comfortable of doing what they are told without question……….next

  4. Healthfirst in Brevard county is mandating flu shots for this year 2013. I am so against this it makes me ill to think we have no choice-not even to wear a mask. What can we do?

  5. If you look at the evidence it is clear to see why the mandates are being put into place. Influenza illness leads to 200,000 hospitalizations and 38,000 deaths every year! Vaccination is the best means of prevention and will decrease the spread of disease to vulnerable patients. There are questions about if this is true. Do unvaccinated HCW spread influenza to their patients? The answer is Yes! Just like many other viruses, the influenza virus can be shed prior to the host being symptomatic. It is a HCW responsibility to do what they can to stop the spread of disease! What’s next? Will HCW begin refusing to wash their hands because they have the right to? I like to compare this dilemma to other mandatory vaccine/ injections. Pertussis killed 20 people from 2011-2012 in the US. No, I did not forget any zeros! But guess what? My son cannot go to middle school without that vaccination! He must have it and I willingly get it for him because the death rate has not always been 20. additionally, All HCWs must participate in TB surveillance. 1 or 2 step PPD, or blood work. If they don’t they cannot work for the hospital. How many people die of TB? In 2010 in the US 596! That’s it folks. But guess what? if we didn’t do it, the death rate would be much higher.. Like it is in many developing countries. We in the US are GOOD at stopping epidemics! We are GOOD at protecting people! We are LUCKY to have vaccinations in the first place. The CDC does not endorse things lightly, therefore, I think all HCWs should do what is right for the greater good and just get vaccinated! If there is a medical or religious reason why you cannot, then so be it but this practice is not new. It HAS to be required for people to effective act.

  6. to mandatoryorbust……
    evidently you are not a healthcare worker. WE have the same right to choose as do the the patients. we cannot force patients to take the flu shot, why should we be forced??? because of a SLIGHT risk of getting the flu and passing it on??? there is no guarantee the the flu vaccine will prevent you from getting the flu. and i think it’s safe to say that most healthcare workers have enough sense to stay home when they are not feeling well….no matter what the problem is. see how much you like it if someone TELLS you that you HAVE to do something you don’t want to do. just in case you didn’t know, the vaccines contain mercury. not a good thing for your neurological system. look it up.

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