New York requires flu vaccines for healthcare workers

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An unprecedented regulation will increase rates, but potentially at the expense of absenteeism

After reading this article, you will be able to:

  • Understand the New York regulation requiring flu shots
  • Identify why healthcare workers and unions oppose the regulation
  • Indicate reasons to make flu shots a requirement in your facility

As medical facilities around the country begin their flu vaccination programs, IPs and employee health directors simultaneously struggle to find ways to convince frontline staff members to receive the seasonal influenza vaccine.

But some hospitals have quit trying to convince healthcare workers and moved straight to requiring them to get immunized.

An even more uncommon precedent has been set in the state of New York. For the first time, a state requirement will force nearly all healthcare workers to be immunized by November 30. The regulation will include the H1N1 vaccine, which was approved by the FDA on September 15.

However, not many employees are thrilled with the mandate. As flu season approaches and vaccinations become available, required immunization is a debate that will continue between unions, workers, and healthcare facilities.

The New York regulation

On August 13, the New York State Hospital Review and Planning Council passed an emergency regulation that requires healthcare workers at general hospitals, diagnostic treatment centers, certified home health agencies, long-term home health programs, AIDS home care programs, licensed home care services agencies, and hospices in New York to receive the seasonal and H1N1 flu shots.

The regulation applies to healthcare workers who have direct contact with patients and who work in facilities that are established, operated, and regulated under public health law Article 28, 36, and 40, which include most healthcare facilities aside from nursing homes and privately owned physician practices. Employees are exempt from the vaccine if they are medically contraindicated.

“The regulation requires that healthcare providers report to us on November 30 of each year on their flu vaccinations of their personnel and how they have met the requirements,” says Claire Pospisil, spokesperson for the New York Department of Health (DOH). “If someone has not been vaccinated by the 30th, they would not be able to participate in direct patient care.”

For the time being, the state will not enforce fines on hospitals that don’t vaccinate all healthcare workers, but it’s a possibility down the road, says Pospisil. Additionally, this regulation will include the H1N1 vaccine that was licensed by the FDA last month.

Pospisil says the DOH considers this a patient safety issue, and it has initiated the regulation to better serve patients.

“There is extensive information in the medical literature about the transmission of flu to patients by healthcare workers,” Pospisil says. “Unvaccinated healthcare workers are a danger to their patients. Patients in hospitals are particularly vulnerable to become infected with the flu because in many cases, their immune systems are compromised.”

The New York State Nurses Association (NYSNA) has publicly opposed the regulation. Nancy Webber, spokesperson for NYSNA, says the organization supports the effort to vaccinate healthcare workers but opposes the idea that it should be mandatory.

“It’s not like polio or smallpox where you can eradicate a disease through vaccination,” Webber says. “The flu, as you know, mutates constantly, so even if you have a flu shot, there is no guarantee you are going to be immune from the particular strain that is circulating. Patients will still be exposed to the flu virus through other means, so there are a great number of questions about that.”

Focusing on other IC tactics

Bill Borwegen, occupational health and safety director at the Service Employees International Union, says the DOH should focus more on education and training to improve vaccination rates rather than forcing the flu shot upon employees. Borwegen says there is a false impression that requiring the flu shot will provide absolute protection. He believes IC procedures such as respiratory protection and standard precautions will fall to the wayside as a result.

“This is not a silver bullet,” Borwegen says. “This is not even a lead bullet. This is one part of a multifaceted program that the New York State Health Department is choosing to entirely ignore to the detriment of patients and workers. This is going to undermine patient safety and worker safety. I mean, there is no doubt in my mind that’s what this is going to do by shifting the limited resources in this field by basically track-ing down and penalizing workers instead of training them.”

Webber also voices concern that required flu shots would not prevent the spread of influenza and would act as a Band-Aid to replace IC measures, which she says the state hasn’t “put a lot of effort into before.”

Pospisil says the state has consulted CDC recommendations and recognizes that the vaccine is a major factor in reducing influenza transmission.

“We are aware that no vaccine gives 100% protection, but we are also aware that the flu vaccine is the best way that we know of currently to minimize your risk for influenza, and it’s one of many steps that we are taking to minimize patients’ risk for influenza,” Pospisil says.

Healthcare worker reaction

One of the concerns from a pandemic preparedness perspective is the backlash that could result from doctors and nurses who simply refuse the vaccine and are not allowed to work, or elect to practice elsewhere. Because of the threat of seasonal influenza and H1N1, now more than ever, states should be supporting healthcare workers and encouraging them to report to work, Borwegen says.

He says he spoke with a group of healthcare workers who were “very, very demoralized.”

“All I can tell you is they were very, very upset, and we need to be encouraging healthcare workers to show up for work during the time of a pandemic,” Borwegen says. “This has the exact opposite effect.”

Webber says the repercussions of a mandatory flu vaccine are unknown at this point. Those with religious and personal objections could go so far as to find another field or another state.

“What we don’t know and what the health department doesn’t know either is the numbers that will be affected,” Webber says. “We have gotten calls from our members and also from nurses who are not members of our association, saying that they will absolutely refuse and that they will either leave nursing or practice in some other state.”

Desperate for discussion

Besides the language of the New York mandate that requires flu vaccination for healthcare workers, the New York State Nurses Association (NYSNA) is displeased with the fact that it was passed as an emergency regulation. This means it can be adopted without publication in the state register and without the usual comment period, says Nancy Webber, spokesperson for NYSNA.

“None of the stakeholders or those that would be most affected by it had any opportunity to comment or have input,” says Webber. “And frankly, we believe that having immunization is a personal choice, that nurses’ jobs should not be on the line depending on their willingness to be jabbed with a needle every year.”

Claire Pospisil, spokesperson for the New York Department of Health (DOH), says the regulation was not pushed through quickly and had actually been in the works for the past year and a half. During that time, the committee met with several groups, including the Service Employees International Union (SEIU) Local 1199, Pospisil says.

Bill Borwegen, occupational health and safety director at the SEIU, says SEIU has no record of any contact with the DOH, nor was the organization aware of any discussions surrounding the issue.

“Is this their excuse that they needed to talk to someone ahead of time?” Borwegen says. “That still doesn’t cut it. They need to have a better reason than that. Maybe you could find one person. We do represent 300,000 people in New York, so they may have talked to one of our leaders, and that leader may not have talked to anyone else. But that doesn’t cut it; that’s a pretty lame excuse.”

Requiring flu shots within your hospital

This flu season some hospitals and medical centers have instituted flu shots as a condition for employment.

This is relatively unchartered territory. In 2006, Virginia Mason Medical Center in Seattle attempted to require flu shots for all employees. But the 9th United States District Court later ruled in favor of the Washington State Nurses Association and ordered the hospital to stop forcing healthcare workers to get the flu shot.

Recently, at least a couple of facilities have adopted this policy, including University of Iowa Health Care in Iowa City, the Charleston (WV) Medical Center, and the Marshfield (WI) Clinic. APIC also released a report August 31, urging healthcare institutions to “require annual flu vaccines for all employees with direct patient contact.”

The executive team at the Marshfield Clinic voted this year to require flu shots for all 7,000 employees, regardless of whether they participate in direct patient care, says Bruce E. Cunha, RN, MS, COHN-S, manager of employee health and safety at the Marshfield Clinic. The only exemption is medical contraindication, in which case workers must wear a mask all flu season.

“This is a patient safety issue,” Cunha says. “The CDC states in their information that vaccination is the best way to prevent influenza. Based on that, we feel that we owe it to our patients to have as many of our employees vaccinated as we can, so there is less of a chance that they are going to be running into people in our facility that have the disease.”

Cunha says the facility’s policy is only for seasonal flu shots. The executive board will make a decision on H1N1 vaccines at a later date.

Marshfield is not a unionized facility, so it does not have to worry about what Virginia Mason faced, says Cunha. The policy is simple: Everyone must be vaccinated by November 1. If an employee fails to comply, he or she is entered into the facility’s three-step disciplinary process.

Cunha says the decision was made because Marshfield could not reach its goal of a 90% vaccination rate despite multiple attempts at education, training, declination systems, humorous videos, and even incentive programs that awarded additional vacation days to employees who were vaccinated. Despite these tactics, the vaccination rate has hovered around 72% for the past two years.

The reaction from Marshfield employees has been less than favorable.

“It’s hard to judge,” Cunha says. “I hear a lot of people that are not happy with it. It amazes me. When we did our declination form, most people just didn’t say why they weren’t getting vaccinated or gave the typical ‘I don’t like shots’ and ‘I don’t think it works,’ but very few people said they had a medical reason and couldn’t get it. All of a sudden, we are getting requests right and left saying, ‘I can’t get the shot for medical reasons.’ Well, you are going to have to document that for us and send it to us, and then you are going to have to wear a mask all flu season.”