Vaccine Rights - Healthcare Employees

EMPLOYEES Last revised Jan 9, 2012 Employer-Required Vaccines (article) \| Title VII and the EEOC \| Religious Freedom Restoration Acts \| \| Equal Protection \| Contracts \| Other Factors \| \| CDC: State Immunization Laws for Healthcare Workers and Patients \| \| College Students in Healthcare Programs \| Healthcare workers and other employees around the country are being told they must get vaccines or lose their jobs. Rights and options vary depending on the specific situation. Some considerations are presented below (specific sections linked above). There are different categories of vaccine requirements in the workplace: 1) Those, if any, required by state law; 2) Those not required by state law but required by the employer, as a matter of company policy; and 3) those recommended by government agencies--e.g., Hep B is recommended by OSHA (but can be refused by signing the appropriate form). "[The hospital] did finally accept my letter from you . . . and I get to keep my job, without getting the vaccine. Thank you again for your help with this!" HG, December 2009	The Authoritative Guide to Vaccine Legal Exemptions
STATE EXEMPTION LAWS Some states have vaccine requirements and exemptions for healthcare workers. A few have medical exemptions; a couple have religious and one philosophical exemptions. The CDC posts this information here.
TITLE VII and the EEOC Title VII of the 1964 federal Civil Rights Act requires qualifying employers to reasonably accommodate their employees' religious beliefs. Widespread hospital policies allowing religious exemptions support the contention that healthcare facilities can reasonably accommodate employees' religious objections to immunizations, generally. The EEOC (Equal Employment Opportunity Commission), a federal agency that enforces discrimination laws and investigates employer discrimination complaints, also supports healthcare workers' right to refuse vaccines in the workplace. However, while most hospitals have policies allowing employees to refuse vaccines for religious reasons, some are overreaching, requiring support from a religious leader. These policies, arguably, exceed the employer's legal authority, so those in this situation may need the help of an attorney to cite applicable law to convince the hospital that they are overstepping their legal boundaries. Most hospital employees who attempt an exemption on their own are turned down. It can be critical, therefore, when requesting a religious exemption to vaccines in the workplace, to have your statement of religious beliefs reviewed by an experienced attorney beforehand, to avoid the legal pitfalls that have caused most employees to be turned down. Unfortunately, this is a legal arena that does not follow "common sense" thinking, so what most people say includes things that can undermine the exemption right. This is especially true when most hospitals also overstep their legal boundaries. Bottom line, it can be very difficult to fix a flawed religious exemption statement after it has already been submitted.
RELIGIOUS FREEDOM RESTORATION ACTS The federal government and about a dozen states have a Religious Freedom Restoration Act or equivalent legislation that requires government to use the least restrictive means to achieve a compelling state interest when imposing on the free exercise of religious beliefs. While current thinking would consider vaccines to be a "compelling state interest", the "least restrictive means" would arguably not require that everyone be immunized, and may provide a basis for vaccine religious exemptions where these acts apply.
CONTRACTS In 2005, the Washington State Nurses Association won a federal court case against a hospital's mandatory flu shots for nurses. The court held that the hospital's unilateral imposition of flu shots violated the nurse's union's collective bargaining agreement, which required the hospital to bargain collectively with the union over all terms and conditions of employment. The case was confirmed on appeal to the 9th Circuit in 2007. See VA Mason Hosp. v. WA State Nurses Assn., 511 F.3d 908 (2007). One weakness in the hospital's position was the lack of public policy favoring mandatory flu shots. However, since the alleged 2009-2010 pandemic (which was not a real pandemic at all), hospitals around the country have been implementing seasonal and swine flu vaccine mandates for employees that risks changing policy in a way that could affect this argument in future cases.
OTHER FACTORS WORKPLACE VACCINE INJURIES AND DEATHS: WHO PAYS? All vaccines carry a risk of injury or death. If a hospital employee is injured by a flu vaccine, who is liable? Is this a workman's compensation matter? Swine flu vaccine manufacturers are exempt from liability, and swine flu vaccines are not listed as being compensable under the federal Vaccine Injury Compensation Program (VCIP). These are issues to raise with employers who mandate flu and swine flu vaccines. DO FLU SHOTS WORK? See The Truth About the Flu Shot by Dr. Sheri Tennpenny citing studies that document flu vaccine failure. See also information about the 1976 swine flu vaccine fiasco--e.g., Haber P, Sejvar J, Mikaeloff Y, Destefano F, [2009]. "Vaccines and guillain barrè-syndrome". Drug Saf 32 [4]: 309–23.. doi:10.2165/00002018-200932040-00005 [inactive 2009-04-26]. PMID 19388722; and the history of reported and compensated flu vaccine injury and deaths (e.g., see NVICP Statistics Reports). Finally, Dr. Hugh Fudenberg, MD, a world leading immunogeneticist, found that 5 consecutive annual flu shots increased Alzheimer's rates by a factor of 10 compared to 2, 1, or no shots. WILL FORCED EMPLOYEE FLU SHOTS AFFECT EMPLOYEE MORALE? As many as 1/2 of healthcare workers say they don't want flu vaccines. Therefore, vaccine mandates could have a significant impact on employee morale, a particularly bad thing in any patient-care setting! Here are just a few of the many 2009 articles showing opposition to swine flu vaccines from healthcare professionals: H1N1 is a False Pandemic, Health Expert Claims Fox News, January 11, 2010 European Parliament to Investigate WHO and "Pandemic" Scandal Center for Research on Globalization, January 2, 2010 Algiers Doctors advise not to vaccinate against influenza A(H1N1) Ennahar Online, December 31, 2009 American doctors saying 'no' to swine flu vaccine Washington Post, November 8, 2009 Many Italian physicians reject swine flu vaccine presstv.ir, November 7, 2009 GP's and practice staff on front line turn down swine flu vaccine pulsetoday.co.uk, November 4, 2009 Dutch scientists suggest kids better off without flu shots POB News, October 29, 2009 Local pediatricians against H1N1 vaccine Wink News (FL), October 27, 2009 65% of French Nurses Will Refuse "Swine Flu" Vaccine Over Safety Concerns Health Freedom Alliance, September 24, 2009 Half of Healthcare Workers Will LIkely Refuse H1N1 Vaccine, Research Finds FOXNews.com, August 26k, 2009 A third of [UK] nurses will refuse to have the swine flu jab MailOnline, August 18, 2009 Medical journal urges caution over flu vaccine IRISHTIMES.com, August 1, 2009 New York State Nurses Association Objects to Flu Vaccine Manadate for Nurses Testimony by NYSNA Accociate Director, July 23, 2009
College Students in Healthcare Curriculums: Clincal Work in Local Hospitals College students doing clinical work in hospitals and other local heathcare facilities are being told that they are required to get shots, in addition to those required by state law for all college students. These additional shots are required by the hospital or other institution, and may not be covered by state exemption laws. However, Title VII of the 1964 Civil Rights Act makes it unlawful for employers "controlling apprenticeship or other training or retraining" to discriminate against individuals based on religion and other factors, so students in healthcare curriculums have a federal right to refuse vaccines in their clinical work, for religious reasons, and if denied that right, may file an EEOC complaint alleging discrimination. However, since most who attempt this exemption on their own are turned down, it can be critical to have your statement of religious beliefs reviewed by an experienced attorney beforehand, to avoid the legal pitfalls. Unfortunately, this is a legal arena that does not follow "common sense" thinking, so what most people say includes things that can undermine the exemption right. This is especially true when most hospitals seem not to know their proper legal boundaries, and therefore will err on the side of refusing exemption requests. It can be very difficult to fix a flawed religious exemption statement after it has already been submitted, so getting proper advice in advance is strongly advised. Arguably, hospitals, for purposes of students doing clinical work, could be considered an extension of the college classroom and thus subject to the same state exemption laws that the colleges themselves are subject to. Colleges may argue that the vaccines are required by hospital policy, and not state law, and therefore, state exemption laws that apply to the college or university don't apply. The schools may also argue that they are contractually bound to provide vaccinated students, and students may be unwittingly contractually obligated to comply with all program requirements including vaccination. But these are state law arguments, so in any event, Title VII would "win", since federal law generally supersedes state law when the two are in conflict. This is because federal law is the higher legal authority. Medical exemptions are probably acknowledged, but what qualifies is subject to debate, and schools are likely to apply strict standards. While Title VII provides a strong legal argument, it does not address vaccines specifically. Therefore, the better long-term solution is to become legislatively active. We need to convince state legislators to enact laws giving all persons, including students, the right to refuse vaccines when doing clinical work in local hospitals. Presently, few states have statutory exemption laws for healthcare employees, and probably none have laws for students doing clinical work in local hospitals as part of their college curriculum.