Health Law Update

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On September 22, 2014, the Massachusetts Nurses Association (MNA) filed a complaint in Massachusetts Superior Court seeking an injunction against implementation of a new mandatory influenza vaccination policy by Brigham &amp; Women’s Hospital (BWH). According to a recent article in the Boston Globe, BWH has a much lower influenza vaccination rate (77 percent) than other Boston-area hospitals. The new policy is intended to raise them.

MNA claims that the new policy runs afoul of a Massachusetts statute allowing employees to decline influenza vaccines. BWH has stated it believes the new policy is lawful.

The battle in Boston highlights the limitations in a healthcare employer’s ability to require vaccinations, but also some opportunities to craft policies that the employer may lawfully implement over employee objection, if need be.

What's Going On?

There can be little doubt of the importance of healthcare employees obtaining vaccinations against infectious diseases. Mandatory influenza vaccinations, however, appear to encounter greater resistance from employees than other vaccines, such as for measles or mumps. As an MNA representative explained to the Boston Globe, the need to be vaccinated each year, coupled with the relative ineffectiveness of the vaccine (50 – 60 percent), leaves many RNs unsure of the necessity of obtaining an influenza vaccine.

Making employees choose between vaccination and their jobs may be easier for an employer to manage, but it seems fated to generate strong resistance. So, what is an employer to do?

Shall We Dance?

Other hospitals appear to have encountered greater success using different tactics. One such tactic is giving employees alternatives that are seen as more burdensome than the vaccine. In <a href="http://e.bakerlaw.com/collect/click.aspx?u=/G1GTPto3VVovB+sENcEnTzXHQqBn3wg&amp;rh=ff001a7fff8dbc40f389f3185441a14ef904d5c1" target="_blank" rel="noopener">California</a>, for example, many counties issue mandatory vaccination orders during the flu season each year. Rather than imposing discipline on recalcitrant employees, employers require unimmunized employees to wear facemasks. (The wearing of facemasks may be a management right, without the need for bargaining with employee representatives. See Virginia Mason Hospital, 358 NLRB No. 64 (2012).) Faced with the choice of receiving the vaccine or wearing the masks, employees appear to opt for the vaccine, as reflected by high vaccination rates.

A Spoonful of Sugar?

The Boston Globe reports that another Boston-area healthcare employer, the Dana-Farber Cancer Institute, has a high vaccination rate (99 percent). Nurses at Dana-Farber also are represented by MNA and are exempted from the vaccination policy. Yet, they overwhelmingly accept vaccination because they understand how it helps patients and the hospital. Taking the time to educate employees as to the value of flu vaccines has paid dividends.

Every employment environment is unique, but the art of persuasion seems to be a more successful approach to obtaining sought-after vaccination rates.

Massachusetts Nurses Association Battles Hospital Over Influenza Vaccine