The Mandatory Vaccination of Health Care Workers
The H1N1 outbreaks of 20091 focused global attention on pandemic prevention through vaccination. As efforts to develop and deliver H1N1 vaccinations to health care workers (HCW) began, reluctance to accept vaccinations became apparent. This reluctance prompted efforts to encourage health care worker vaccination.
On August 13, 2009, the New York State Hospital Review and Planning Council adopted an emergency regulation mandating the vaccination of HCW for seasonal and H1N1 influenza2. New York State Commissioner of Health Richard F. Daines, in support of the mandate, stated that voluntary vaccination only resulted in staff immunization rates of 40-50%3. According to Commissioner Daines, low vaccination rates can lead to "institutional outbreaks . . . every flu season" and that "[m]edical literature convincingly demonstrates that high levels of staff immunity confer protection on those patients who cannot be or have not been effectively vaccinated . . . .4" All New York HCW were to receive the seasonal and H1N1 influenza vaccine by November 30, 2009, or be terminated from employment unless the vaccine was medically contraindicated5.
Four nurses, the New York State Public Employees Federation, and the New York State United Teachers Union brought suit to halt the mandatory vaccination, which resulted in the issuance of a temporary restraining order6. In the end, New York did not enforce mandatory vaccination of HCW for H1N1 due to a vaccine shortage7. These cases highlight concerns over mandatory vaccination. What follows is a discussion of the importance of vaccinating HCW; the civil liberty concerns associated with mandatory vaccination; as well as examples of different states' regimes and exceptions.
- Health Care Workers are Critical to Protecting Public Health
"Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members8."
HCW are limited in number; their health is a priority. HCW "have a responsibility to protect their own health and well-being, grounded in their professional commitment to ensure adequate availability of care9." Influenza can disrupt continuity of care and vaccinating health care personnel reduces influenza infections, resulting in fewer working days lost10. Furthermore, HCW provide care for vulnerable populations11. Pro vaccination advocates argue that HCW have a duty "not to harm a patient when [they] [know] there is a significant risk of harm through infection" and the vaccination's benefit outweighs its burden and risk12. HCW need to be vaccinated to protect public health, and research has indicated they will not do so voluntarily in larger enough numbers13. For example, surveys conducted in early 2009 indicated that voluntary pre-pandemic vaccination levels among HCW in Hong Kong were below 50%14. Therefore, mandatory vaccination of HCW may be warranted to prevent a pandemic.
- Civil Liberty Issues of Mandatory Vaccinations
Mandatory vaccinations create concerns over individual autonomy over one's body. As long ago as 1905, arguments made in Jacobson v. Massachusetts15 summarize the most basic reasoning behind such concerns: "[mandatory vaccination is] hostile to the inherent right of every freeman to care for his own body and health in such a way as to him seems best . . . .16" However, there is not an absolute right for an individual to be entirely without restraint17. There are restraints placed on all people for the common good, without which organized society would be unsafe18. Individual rights must be balanced against public safety. In fact, the Court found there is no
element in the liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the State19.
The State's power is not absolute when it comes to vaccination. A court may strike down vaccination regulatory enforcement if "the police power of a State . . . [is] exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression20." How far a regulatory scheme must go to be arbitrary and oppressive is unclear, but it shows the Court is cognizant of potential issues with implementation of vaccination regimes21.
State Statutes Promoting Vaccination of Health Care Workers
The H1N1 outbreak and resulting need to protect the public prompted many states to implement policies designed to promote health care worker vaccination22. Some states went so far as to effectively make vaccination a condition of health care employment23. These efforts created significant discussion over civil rights concerns24, including the right to make one's own medical decisions, the right to freely practice one's religion, and the right to privacy25.
There is a need to balance public health and civil liberties when implementing mandatory vaccination regimes. The Supreme Court rulings on mandatory vaccinations have used the "arbitrary or oppressive" standard to effectively set a minimum level of civil liberty protections. States wishing to grant a greater level of civil liberty protections26 have elected to offer reasonable exceptions including medical contraindication and religious belief.
Two Common Exceptions
- Medically Contraindicated
Some states have created an exception for situations where vaccination is medically contraindicated27. The proof required to qualify for this exception varies by state. In Maine, one must present "a physician's written statement that immunization … is medically inadvisable28." Contrast that with New Hampshire's law which requires vaccines be administered "in accordance with the recommendations of the Advisory Committee on Immunization Practices [ACIP] of the Center for Disease Control and Prevention29." ACIP promulgates specific recommendations on administration and contraindication, reducing physician discretion in granting an exception because a vaccine is medically inadvisable30.
- Freedom of Religious Practice
Although states cannot create a law prohibiting the free exercise of religion31, individuals' freedom to practice religion may be limited where doing so infringes upon community safety32. In Prince v. Massachusetts33, the court noted that a parent "cannot claim freedom from compulsory vaccination . . . on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death34." Furthermore, some courts find no explicit First Amendment provision for a religious exemption to mandatory vaccination35. It should be noted that an individual state or private employer may provide specifically for a religious exemption or opt-out, and many do36.
Balancing the Need for Vaccination and the Desire to Offer Exceptions
While some states have elected to allow HCW to simply opt-out of vaccination, concerns about low vaccination37 participation led other states to adopt more rigid approaches, requiring that all HCW be vaccinated unless they fall within an allowable exception38.
One way to balance these competing concerns would be to offer exceptions for medical contraindication and religious belief when possible, but allow public health officials to disallow exceptions when necessary. The determination that exceptions should be disallowed would only be appropriate when granting exceptions resulted in a vaccination percentage insufficient to effectively protect public health. This system would help protect civil liberties by requiring public health officials to show ineffective vaccination levels prior to disallowing reasonable exceptions for HCW. Such a showing could be challenged by concerned HCW, adding an additional layer of protection and transparency.
Privacy Concerns Relating to Mandatory Vaccination
For those states allowing for opt-outs or exceptions, hospitals have a variety of methods for publicly indicating39 who has not received mandatory vaccinations, including: color coded stickers, masks, or badges indicating that workers wearing masks are unvaccinated40. Making such information publicly available may infringe upon the privacy rights of HCW. For instance, Johns Hopkins Hospital's (Hopkins) policy initially used colored clips attached to hospital ID badges for personnel who received vaccinations, one color for seasonal flu and another color for H1N1. Hopkins ultimately decided not to provide a separate color for H1N141 vaccination recognition because H1N1 vaccine was prioritized for certain groups, and therefore might divulge private health information43. In the end, Hopkins personnel were provided an opt-out, but were required to wear a mask when within three feet of patients43.
As Hopkins discovered, implementing procedures that identify vaccinated or unvaccinated individuals may ultimately end with unintended consequences. One court has determined a policy requiring masks or stickers to indicate vaccination created the "collateral and unnecessary effect of calling the employees' status to the attention of patients and the public[,]" thereby stigmatizing employees44. The Court ordered the parties "to eliminate any stigmatizing procedures associated with the new vaccination policy45." Institutions should therefore be mindful of privacy concerns when they distinguish between the vaccinated and unvaccinated.
The limited number of HCW makes maintaining their health paramount in combating outbreaks. Unfortunately, the only way to accomplish this may be through a mandatory vaccination regime, as studies show up to 60% of HCW will opt-out of vaccination if allowed. The public health and legal communities must determine how to implement mandatory vaccinations among HCW to ensure the next outbreak does not become a pandemic.
Daniel Goodman is a Phi Beta Kappa graduate of the University of Alabama, graduating magna cum laude in 2006 with a B.A. in History and Political Science. Mr. Goodman received his JD from the University of Maryland School of Law in 2009. During law school, Mr. Goodman was Managing Editor of the University of Maryland Law Journal of Race, Religion, Gender and Class as well as Student Bar Association Executive Board Secretary. Mr. Goodman completed an Asper Fellowship with the Honorable Clayton Greene, Jr. of the Maryland Court of Appeals and was a judicial intern for the Equal Employment Opportunity Commission. Mr. Goodman was also a law clerk at a local Baltimore law firm. After law school, Mr. Goodman practiced law in Alabama before rejoining CHHS. Daniel Goodman joined CHHS in January 2010 as a Law and Policy Analyst. Mr. Goodman is admitted to practice law in the state of Alabama.
Christopher Webster joined CHHS as a Law and Policy Analyst in August 2010, shortly following his graduation from the University of Maryland School of Law. He received his BS in Business Administration, with focuses in Finance and Accounting, from Colorado State University in December 2006. Prior to attending law school, Mr. Webster honed his accounting skills by interning with Hewlett Packard's Worldwide Freight Cost Management Division. Mr. Webster's legal experience includes internships with small law firms specializing in water resource law and consumer protection, as well as time with the University of Maryland's Low Income Taxpayer Clinic. Mr. Webster has worked previously as both a research assistant and extern with CHHS, researching and writing about homeland security preparedness metrics, cyber security, and emergency planning for special needs communities.