Objections to flu shots among healthcare workers have garnered much recent media attention. Depending on your point of view, the objecting workers might be martyrs for their beliefs or callous villains intent on spreading preventable disease. Regardless, the ethical and legal issues need to be clarified before resorting to simplistic labels.
First, what’s the fuss all about? Healthcare workers around the nation have reportedly refused to take the flu vaccine for a number of reasons. The objections are premised upon personal autonomy or ideology (“Nobody should be able to force me to put anything into my body.”), scientific skepticism (“I don’t believe the flu shot works.”), medical fear (“I may be one who has a rare allergic reaction.”), and/or some variety of religious conviction (“God gave us a body with an immune system, and if we live healthy and pray, we won’t get sick.").
The Centers for Disease Control and Prevention (CDC) admits that the flu vaccine is not 100 percent effective, given the variety of strains floating around out there. In fact, the efficacy of this year’s shot is only about 62 percent. That is not great, but it is far better than nothing. The American Medical Association, American Nurses Association, and CDC all recommend healthcare workers be vaccinated to enhance patient safety.
As for the concerns regarding allergic reaction, in November the Food & Drug Administration approved an egg-free vaccine, which eliminates the threat of anaphylactic shock for those with egg allergies. A nasal spray vaccine application should appease objectors who fear needles.
Moreover, despite widespread myths to the contrary, the flu vaccine cannot transmit the virus. It is scientifically impossible. As Dr. William Schaffner, chair of preventive medicine at Vanderbilt University Medical Center and former president of the National Foundation for Infectious Diseases has noted, "There seems to be a persistent myth that you can get flu from a flu vaccine among nurses. [Yet] they subject themselves to more influenza by not being immunized, and they certainly do not participate in putting patient safety first."
Thus, several objections simply do not hold up under scrutiny. Yet, only 60-70 percent of healthcare workers get the vaccine each year.
So why has the issue created headlines this year? One factor is the scope and strength of this year’s influenza outbreak. During an average year, 25,000 to 36,000 people will die in the US from flu-related deaths. Rates of infection and death are highest among children younger than 5 years, adults ages 65 and older, and anyone with a compromised health status. As of the first week of 2013, the proportion of deaths attributed to pneumonia and influenza (P&I) so far this year was slightly above the epidemic threshold, with widespread P&I activity reported in 47 states.
Additionally, the organization that accredits hospitals – the Joint Commission – has recently increased its emphasis on influenza vaccination education and programs for all staff and licensed healthcare practitioners. By 2020, the Joint Commission wants its accredited healthcare organizations to have a 90 percent flu vaccination rate, but hospitals were encouraged to begin ramping up their employee compliance programs earlier this Fall with the start of this year’s flu season.
Legally, the question is whether or not hospitals can compel 100 percent compliance and require employees to get a flu shot or be terminated if they refuse. In general, US employers may create these comply-or-go policies, because of the prevailing “employment at will” rule that applies to the vast majority of employer-employee relationships in this country. With some important exceptions, employers are free to fire employees at any time and without notice (just as employees can quit without explanation or notice).
Nevertheless, a couple of the exceptions to that general rule can be implicated when employees refuse flu shots. Federal equal employment opportunity laws prohibit discrimination on the basis of religion and disability. These laws also require employers to make exceptions to generally applicable work rules to accommodate for an employee’s conflicting religious belief or practice or qualifying mental or physical impairment, unless the accommodation would cause a hardship on the employer’s business. The laws create an intricate balance between employees’ religious and medical needs and employers’ interests in efficient and profitable administration of their businesses.
Thus, an employee who cloaks herself in a religious objection or who claims a disability is not automatically protected from being fired for refusing to get a flu shot. And an employer cannot create a zero-tolerance policy and refuse to consider objectors’ reasons. The laws make clear that balancing these interests—whether religious or medical—must be done on an individualized, case-by-case basis. The laws’ limited accommodation requirement makes sense in this context, because termination of nurses who refuse the flu shot is not necessarily the only option.
In our view termination should certainly be the option of last resort - and only after a transparent and fair process of review and appeal. Where feasible, hospitals should consider reassigning unvaccinated workers to non-patient areas or requiring that they wear masks throughout the influenza season. Healthcare workers’ good faith religious and medical objections must be given adequate consideration. And, while employers are under no legal obligation to accommodate wholly personal, non-religious ideological or political objections to the vaccine, once a procedure is in place to consider objections and make appropriate necessary modifications for sincere religious and legitimate medical needs, an ethically and economically savvy employer might consider whether they can likewise provide non-mandatory accommodations in order to avoid losing otherwise valuable and loyal employees.
Still, depending on the percentage of nurses and other healthcare workers refusing to comply, policies for reassignment may not be practical; in the language of the equal employment opportunity laws, widespread reassignment could easily result in an undue hardship on the provider’s business. Ultimately, personal ideology, religious conviction, and personal medical objections may have to give way to efficient operation of a vital business sector and public health imperatives. Healthcare professionals may, at the end of the day, simply be required to follow orders and comply with what the best medical science tells us is necessary to protect the health of patients. After all, patients entrust their lives to healthcare workers who are professionals with an ethical duty – regardless of their legal rights - to put the best interest of the patient in front of their own.
Those who are unable to be accommodated and still refuse to be vaccinated are likely neither martyr nor villain, but may legitimately be out of a job.
The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI's online graduate programs, please visit our website.
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BIOETHICS TODAY is the blog of the Alden March Bioethics Institute, presenting topical and timely commentary on issues, trends, and breaking news in the broad arena of bioethics. BIOETHICS TODAY presents interviews, opinion pieces, and ongoing articles on health care policy, end-of-life decision making, emerging issues in genetics and genomics, procreative liberty and reproductive health, ethics in clinical trials, medicine and the media, distributive justice and health care delivery in developing nations, and the intersection of environmental conservation and bioethics.