Lawyers make things complicated — they can’t seem to help it. Take mandatory flu vaccinations for healthcare workers: the evidence is overwhelmingly in favor of requiring that all healthcare workers receive annual inoculation against influenza. Flu vaccines are a good idea for nearly everyone, but they’re even more critical for hospital personnel. The concern isn’t just that healthcare workers are more likely to be exposed to the virus — although that’s certainly true — unvaccinated workers may play a role in the transmission of the virus among and between vulnerable populations.
An affected nurse, doctor, or orderly is a vector of infection, and therefore the potential lynchpin of a public health catastrophe, which is why the US Department of Health and Human Services has set a still-elusive goal of a 90% vaccination rate in healthcare workers.1 The policy doesn’t promise to make us impervious to the flu (the vaccine’s performance is notoriously volatile from year to year), but even at its least effective the protection afforded by vaccination is quite a bit better than nothing.
That understanding is largely non-controversial.2 I suspect that in a vacuum the vast majority of healthcare systems would require all employees without a documented allergy to get the vaccination, and we wouldn’t be having this conversation.
But lawyers abhor a vacuum.
The trouble starts when a hospital employee refuses a mandatory vaccination on the basis of religious belief. Many times, these cases end up in mediation or are settled without the employee pursuing litigation. But sometimes the courts are dragged into it. When that happens, the employee usually claims that they’ve been discriminated against due to religion — a violation of Title VII of the Civil Rights Act requiring employers to “reasonably accommodate” religious practices, unless it would result in “undue hardship” for their business.3
In those cases, the court asks the employee to illustrate a legitimate religious belief that conflicts with the employer’s requirement — in this instance, a religious objection to flu vaccination — as well as prove that they were fired for failing to comply with the edict. If the employee manages to adequately make their case, then it falls to the employer to prove that either a reasonable accommodation was offered, or that such accommodation would impose undue hardship.4
Nearly 50 years ago, the US Supreme Court determined that “undue hardship” is anything greater than a trivial burden: de minimis, in lawyer speak. The de minimis analysis, a largely economic argument, seems to work reasonably well for a lot of businesses. As far as hospitals go, it’s grievously misguided. Hospitals are profit-seeking enterprises that must find a way to survive in a capitalistic environment, but that’s not all they are. Hospitals — not just doctors, nurses, and other healthcare providers, but the larger systems that employ them — have a bedrock responsibility to defend the health of their patients. Dollars and cents might be easy to measure for whatever faceless company owns the hospital, but a profitable hospital with substandard patient outcomes is a failure. The bottom line is that hospitals are a public trust that not only receive massive amounts of government funding, but are reflexively trusted by the community and, critically, serve as the vessel for the ethical obligations and aspirations of nurses, doctors, and all the rest.
Any reasonable evaluation of the burden placed on a hospital needs to extend beyond mere monetary concerns. Ideally, we’d be able to quantify how many patients were likely to get sick as a result of any given policy. Even if we can’t quite achieve our preferred level of precision, the question is worth asking. A landmark study published in The Lancet suggests that routinely offering — just offering, not requiring — vaccines to healthcare staff can cut the in-hospital mortality rate from influenza in half.5 In that study, only half of the staff ended up receiving vaccinations. Imagine what would happen if the entire workforce complied. Vaccination is an irreplaceable part of the physicians’ pledge to do no harm, and part of a hospitals’ responsibility to their community. Our legal system should reflect that it is everyone’s responsibility. Either we hang together, or we’ll surely hang separately.
- Black CL, Yue X, Ball SW, et al. Influenza vaccination coverage among health care personnel – United States, 2016-17 influenza season. MMWR Morb Mortal Wkly Rep. 2017;66:1009-1015.
- Pitts SI, Marthur NM, Millar KR, Perl TM, Segal J. A systematic review of mandatory influenza vaccination in healthcare personnel. Am J Prev Med. 2014;47(3):330-340.
- Equal Employment Opportunities. 42 USC §2000e(j). Title VII of the Civil Rights Act. http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter21&edition=prelim. Accessed February 23, 2018.
- Weiss V (2016). Unwrapping religious accommodation claims: the impact on the American workplace after EEOC v Abercrombie. Seton Hall Law Review. 2016;46(4): Article 5. http://scholarship.shu.edu/shlr/vol46/iss4/5/. Accessed February 23, 2018.
- Carman WF, Elder AG, Wallace LA, et al. Effects of influenza vaccination of health-care workers on mortality of elderly people in long-term care: A randomized controlled trial. Lancet. 2000;355(9198):93-97.