Lawsuit highlights employer limits in fighting flu

The Service Employees International Union Local 1107 is suing the operators of Sunrise Hospital and Southern Hills Hospital and Medical Center, claiming the hospitals' H1N1 vaccination policies are a violation of its collective bargaining agreement. But the lawsuit may only be the start of litigation over how far employers can go in the name of disease prevention.

The federal complaint filed Oct. 29 named Sunrise and Southern Hills' parent Healthcare Corporation of America, and seeks an injunction until an arbitration hearing can be held. At issue is the new policy of the HCA hospitals to require employees to get the seasonal flu shot.

The H1N1 vaccine was also initially mandated, but that requirement was later dropped due to the shortage of the vaccine, Local 1107 union spokeswoman Amber Lopez-Lasater said. The union is also making a pre-emptive strike against any forced H1N1 vaccination policy in its lawsuit.

"We think it should be an individual decision made by the trained health care providers," she said.

HCA's refusal to meet and negotiate with union representatives sparked the lawsuit, added Lopez-Lasater. She claims such a meeting is required under the collective bargaining agreement.

Under the new policy, if an employee refuses to be vaccinated for the seasonal flu, they are required to wear masks and badge markers indicating they had not received the flu vaccine. Hospital workers may face discipline up to termination for refusing to do either, according to the federal complaint.

Sunrise and Southern Hills Hospital spokesman Dan Davidson confirmed the regular flu shots are mandatory for the hospitals' health care providers, and those who refuse vaccinations must wear masks. HCA also operates Sunrise Children's Hospital.

"This is all part of our comprehensive infection control program and about protecting our patients," he said in a statement. "It is the flu season and the president (of the United States) has declared the pandemic a national emergency."

About 90 percent of the hospitals' staff members have already opted for a flu shot, Davidson said.

He defended HCA's actions.

"We are on the front lines of patient care and during the emergent times we must take swift actions to ensure we can take care of our patients."

The protection afforded hospital patients by the masks may not be as much as it seems, Lopez-Lasater countered.

"The proper masks aren't available, and OSHA has said the N95 respirator masks are the ones needed to protect the people," she said.

The Southern Nevada Health District does not recommend the wearing of face masks for unvaccinated health care workers, except under certain circumstances, such as a tracheostomy procedure. That operation would require a N95 respirator mask, said Dr. John Middaugh, the district's director of community health.

The health district's recommendations on flu prevention guidelines mirror those of the Center of the Disease Control in Atlanta.

"Flu vaccination recommendations have been standard for many years," he said. "For the new H1N1 vaccine, the recommendation was made when we thought it would be more plentiful."

That H1N1 vaccination recommendation has since been rescinded due to the shortage of the vaccine. So far, the health district has received between 30,000 to 40,000 doses of the H1N1 vaccine, with local physicians and hospitals getting another 35,000 to 45,000 doses, Middaugh said.

"The manufacturer of the vaccine is considerably behind," he added. The shortage has limited the H1N1's availability to the vaccine to the highest risk groups. Those include health and child care providers, pregnant women, and caregivers for infants.

The emergency state declared by President Barack Obama and the shortage of H1N1 vaccine have left many employers gripped by fear of a deadly local outbreak. They may choose workplace and customer safety first, and worry about the legal implications later, some attorneys said.

"In general matters, employers have both the right and obligation to maintain a safe work environment," said Jeff Winchester, a labor lawyer with Fisher & Phillips.

Employers can send sick workers home, without running afoul of either the Americans with Disabilities Act or the Family and Medical Leave Act. Winchester also advises employers to not discipline employees for calling in sick, and to provide paid sick time whenever possible.

As for the lawsuit against HCA, Winchester surmised it will come down to the details of the collective bargaining agreement, and whether the document gives the hospital the right to enact workplace safety policies.

However, forced vaccinations can be tricky, even among health-care workers, he said.

Contact reporter Valerie Miller at vmiller@lvbusinesspress.com or 702-387-5286.

Source: Las Vegas Business Press.com, Nov 12 2009
BY VALERIE MILLER