Lawyers Journal

The headlines are inescapable: The nation is in the grip of the worst influenza epidemic in years. Nationally, the United States Center for Disease Control and Prevention estimates that influenza has caused, or been a substantial contributor to, well over 100 deaths, including 20 reported pediatric deaths.¹ The Massachusetts Department of Public Health has reported more than 6,000 reported flu cases this season and 20 flu-related deaths in the commonwealth. The city of Boston has confirmed over 700 flu cases this season, including four deaths, leading Mayor Thomas M. Menino to declare a public health emergency in the city.

Some national authorities have reacted by imposing draconian measures upon workers who serve the aged and infirm. In October 2012 the Rhode Island Department of Public Health promulgated an emergency regulation requiring health care personnel (HCP) who come into contact with patients to become vaccinated against this year's influenza.² Rhode Island became only the second state in the nation to require mandatory vaccination of HCP during influenza epidemics or pandemics.³ The Massachusetts Legislature considered bills authorizing the mandatory vaccination of HCP following the outbreak of the H1N1 "swine flu" pandemic of 2009, but tabled those efforts in 2010.⁴

Many Massachusetts health care facilities have followed Rhode Island's lead by requiring HCP, under threat of termination, to become vaccinated against influenza.⁵ Such mandatory vaccination policies have a superficial appeal. The 2012-2013 flu vaccine protects against three influenza viruses - H1N1 virus, H3N2 virus, and an influenza B virus and initial reports indicated that 91 percent of tested virus samples from infected patients this season match one of the three vaccine strains.

Despite its attractive façade, employer mandated immunization policies have limited demonstrated efficacy, ignore less invasive (and more effective) alternatives and threaten to permanently undermine the rights of HCP. Those rights are embodied in the ebb and flow of a century of immunization case law and the development of the concepts of a constitutional right to privacy and bodily integrity.

Privacy, bodily/medical integrity and constitutional implications

One of the earliest challenges to a mandatory immunization program was the seminal case Jacobson v. Massachusetts, 197 U.S. 11, (1905). Jacobson, a Cambridge resident, refused a mandatory smallpox vaccine, challenging a city ordinance requiring the vaccine for all residents.⁶ Jacobson argued that a "compulsory vaccination law is … hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person." Id at 26. The United States Supreme Court, however, upheld Jacobson's criminal conviction, ruling that "in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand." The court warned, however, that "the police power of a State … may be 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 oppression."

Jacobson set the stage for over a century of legal wrangling pitting the state's use of its police power in securing the public health against an individual's right to privacy, bodily integrity and to make informed medical decisions.⁷ Health care providers considering the implementation of a mandatory immunization program should be guided by the development of the constitutional balance with which courts often struggle. This historical balance depends on factors such as the actual threat posed by the disease, the efficacy of the mandate and the impact of the mandate on constitutional rights.

Mandatory vaccination programs against a deadly disease (such as smallpox) or one designed to completely eradicate a contagious, dangerous disease (polio, measles) have been upheld as reasonable exercises of the state police power.. Even the eradication of contagious, serious illnesses (chicken pox) have been upheld as a justified use of police power. The state's police power, however, has not in modern times, been wielded in a situation in which the disease is not deadly and the immunization program is not designed to eradicate the disease. In the guiding light of these general principles, employers should eschew policies mandating influenza immunization of HCP. Such policies are an unwarranted infringement upon workers' rights when the intrusiveness of such a policy is viewed in light of their limited efficacy and available alternatives.⁸

Efficacy issues and effective alternatives

Influenza immunization programs are not designed to eradicate influenza viruses. influenza vaccinations offer, at best, short term protection against very few of the myriad known (and ever evolving) virus strains. Vaccine efficacy is, moreover, known only after the fact. The vaccination "cocktail" is premised upon an educated guess by World Health Organization experts which influenza strains will be most prevalent in the northern hemisphere during the upcoming flu season. In years when the vaccine and circulating viruses are not well matched, there will be decreased vaccination benefit. The CDC's Morbidity and Mortality Weekly Report for Jan. 11, 2013 indicate a 62 percent estimated vaccine effectiveness this season. Estimated vaccine effectiveness was 52 percent for the 2011-12 flu season and 60 percent for the 2010-11 flu season.

In addition to limited efficacy, an employer should consider alternative effective measures that do not force employees to choose between their privacy and bodily integrity rights and their jobs. For example, in early January 2013, UMass Memorial Medical Center implemented a policy banning visits from children under 16 years of age, since children are at high risk for carrying the virus due to the ease with which contagions pass in schools and other youth settings. Since senior citizens face a higher probability of developing pneumonia and other life-threatening flu complications, some skilled nursing facilities catering to primarily elderly populations, such as Marian Manor in South Boston, have altogether barred visitors (with some limited exceptions). Neither UMass nor Marian Manor mandate staff vaccination.

Significantly, the CDC's Advisory Committee on Immunization Practices does not recommend mandatory immunization policies, instead encouraging employers to establish voluntary workplace immunization policies. The CDC offers a 15-page brochure, available on its website, with detailed workplace strategies for encouraging immunization.⁹ The United States Occupational Safety and Health Administration offers similar guidance for employers, but does not encourage mandatory immunization of workers.

The middle path

Employers should use caution when considering implementing a mandatory immunization policy. Such mandates open the door to a host of potential legal issues. Mandatory immunization policies have been deemed to be the subject of collective bargaining in unionized workplaces. Failure to include or properly administer carve-outs for religious, moral and/or medical objections may expose private employers to privacy violation actions and may open the door to new public policy exceptions to the "at-will" employment doctrine. Public employers may also, of course, face constitutional challenges.

From a practical workplace management and environment perspective, forcing employees to annually subject themselves to an injection they may sincerely oppose instills resentment and damages morale. Mandatory immunization policies also unnecessarily burden administrators who will be required to carefully monitor compliance, determine exemptions in a case-by-case but consistent manner and mete out discipline for non-compliance. A flu shot mandate may actually be more effective at driving talented medical professionals away from an employer than preventing the flu virus from spreading among the general public.

A health care provider is better advised to invest its valuable and limited resources in voluntary flu vaccination programs. Joining government authorities in educating workers and the public - particularly caretakers of school-aged children, seniors and those with medical conditions that may prove fatal if complicated by influenza - would prove more beneficial to society. Voluntary workplace programs and initiative will foster cohesiveness and ultimately improve morale. Most significantly, however, implementation of voluntary, rather that mandatory immunization policies, will prove more effective in limiting the spread of the Influenza virus without impairing worker rights or exposing the employer to legal actions and practical complexity and cost.

¹CDC Situation Update: Summary of Weekly FluView, week ending Jan. 5, 2013.
²Predictably, the regulation is the subject of a legal challenge. In December 2012 the SEIU Healthcare Employees Union District 1199 filed suit in the U.S. District Court for the District of Rhode Island challenging the legality of the regulation. The state filed a motion to dismiss, which motion is pending.
³In September 2009 the New York State Department of Health implemented an emergency rule mandating influenza vaccination of HCPs. The rule covered over 500,000 health care workers and contained no opt-out exception. Two worker groups filed suit and, on Oct. 13, 2009, the New York Supreme Court issued a temporary restraining order halting implementation of the rule. Gov. David Paterson suspended the regulation on Oct. 22, 2009, stating that the case had been rendered moot by a national vaccine shortage. In January 2012, Colorado's Board of Health issued a regulation requiring health care facilities across the state to achieve a 90 percent flu vaccination rate by the 2014-2015 flu season which may force Colorado health care employers to mandate vaccination for all HCPs.
⁴See Massachusetts Senate Bill 2028, "An Act Relative to the Implementation of Emergency Preparation and Response in the Commonwealth," and Massachusetts House Bill 1572, "An Act Relative to the Implementation of Emergency Preparation and Response."
⁵Such termination threats are not idle and are taking place with greater frequency as the epidemic deepens. For example, in January 2013, Indiana University Health Goshen Hospital fired all employees who failed to comply with its immunization mandate.
⁶Those refusing smallpox immunization faced the choice of either moving from Cambridge or paying a $5 fine.
⁷See United States v Carolene Products Co, 304 US 144, 147 (1938 ) (Right to regulate commerce where injurious to the public health); Griswold v Connecticut, 381 US 479 (1965) (Right to privacy/Due Process); Roe v Wade, 410 US 113 (1973) (Right to medical privacy); Lawrence v Texas, 539 US 558 (2003) (Due Process); Foucha v Louisiana, 504 US 71 (1992) (Freedom from arbitrary physical restraint under the Due Process Clause).
⁸Sincere religious objections to vaccinations have been a recognized opt-out (depending on disease) throughout the United States. Because the influenza vaccine is incubated in chicken eggs, some oppose vaccination on moral grounds as the wrongful exploitation and/or cruelty to animals. Medical objections to the vaccine include those who have severe egg allergies (the vaccine may contain small amounts of egg protein) have been diagnosed with Guillain-Barré Syndrome or who have had adverse reactions to prior flu vaccines.
⁹www.cdc.gov/flu/pdf/business/toolkit_seasonal_flu_for_businesses_and_employers.pdf

John F. Tocci is vice chair of the MBA's Labor & Employment Section. He is a partner of Tocci,  Goss & Lee PC in Boston, where he manages the employment counseling and litigation practice. Amy Doherty is an associate in the firm, where she concentrates on advising clients in the areas of executive compensation and benefits, as well as litigation prevention.