Wisconsin Rep. Jeremy Thiesfeldt Befriends the Flu

One of the greatest refuges of those opposed to sound science and science-based policy is the legislature. After all, if you have no scientific basis to your position, change the laws to support your arguments instead. That's what opponents of vaccines generally like to do. They launch PR campaigns and wine and dine Congresscritters to try to get their way, rather than conducting actual quality scientific research and publishing the results. They really don't like it when public laws that aim to protect the public health are based on science and work quite hard to get those laws quashed.

The latest effort to undermine public health comes from Wisconsin Representative Jeremy Thiesfeldt. Rep. Thiesfeldt is in the process of drafting and proposing a law that would ban public health employers from requiring their employees to receive the seasonal flu vaccine as a condition of employment. The fledgling bill comes after Rep. Thiesfeldt apparently received complaints from health care workers complained that they were forced to be immunized against the flu or lose their jobs. The accompanying memo is couched in "health freedom" style language and pits individual rights against employers' (and the public's) rights.

Before I get to the legal language, let's take a look at the memo that accompanied the proposed legislation.

This bill only applies to the flu vaccine.

No one should have to choose between losing employment and having a largely ineffective vaccine injected into their body. It is a matter of freedom for an individual to make personal health care decisions, conversely mandated flu shots cause employees to be medicated without consent.

I will readily admit that the flu vaccine could be better. Some years, it is quite good, others, less effective. Its effectiveness is dependent on age, mode of administration and match between the circulating strains of the virus and the vaccine strain. But with all of its flaws, the flu vaccine is still a good vaccine. It could be better (and research is ongoing to improve it). Note that only the flu vaccine is being targeted by this with the explanation that it is a matter of personal freedom. It does not address any other required vaccinations. I'll come back to this later.

A random sampling of individuals would find objections to the flu vaccine for several reasons. Some will relate stories of negative side-effects or simply standing their ground on an issue of personal freedom.

Certainly, some people may object to the vaccine. Those who decline due to reactions actually caused by a previous immunization have a medical exemption, so this bill would not change anything for them. Those who object for other reasons are not basing those decisions on science.

Currently, if an employer mandates a flu vaccine as a condition of employment, a “religious exemption” must be allowed which protects the 1st Amendment rights of employees.

I am not a lawyer, so if any are reading this, please correct me if I'm wrong, but the First Amendment applies to government, not to private employers. Non-discrimination laws may come into play with regard to a religious exemption being denied, but not the First Amendement.

The Center for Disease Control (CDC) says that flu viruses are constantly changing. The vaccine formulated each year is an educated guess as to which flu strain will need to be fought each season. Because of this, it is entirely possible that a vaccine may be ineffective before being administered to patients. Additionally, the CDC admits that every season there are those who test positive for the flu even after receiving the vaccination. Rep. Thiesfeldt learned that 6 of 14 people vaccinated at an assisted living home in Fond du Lac tested positive for the flu (type A), and they found that their vaccinations only protected against the type B influenza virus.

Based on the Center for Disease Control’s own documents the flu vaccine fails in over 40% of vaccinated employees. With such a level of ineffectiveness, vaccination status is not a reliable indicator of immune status. Furthermore, the Vaccine Adverse Event Reporting System and National Vaccine Injury and Compensation Program have revealed irrefutably that flu vaccines can cause permanent disability and even death.

These paragraphs illustrate the spin that Rep. Thiesfeldt puts on reality, twisting things to support his effort. Does the virus mutate from year to year? Yes. That is why a new vaccine is required each year and why immunity does not last, even if you are naturally infected. Is the formulation an "educated guess"? Technically true, though it is not a "guess" in the sense of just trying something and hoping it works. The formulation is based on sampling the dominant strains circulating in the Southern hemisphere, which will be the most likely candidates to cause the majority of influenza in the Northern hemisphere the following season. Do some people test positive for flu even after getting the vaccine? Yes, but there is more nuance that Rep. Thiesfeldt ignores. For instance, there are those who receive the vaccine after they have already been exposed to the virus. There are those who are exposed shortly after receiving the vaccine. Since the vaccine takes about two weeks to generate immunity, the individual will become ill despite being immunized because the virus has already established a foothold in their bodies. There are some who may be exposed to a strain not included in the vaccine. Some may, for whatever reason, have a less robust response to the vaccine and thus still be susceptible the the flu. Generally speaking, however, those who still get the flu have a milder course of illness if they have been vaccinated. Note also how Rep. Thiesfeldt cherry picks data to support his case (and note, too, that the sample size is extremely small, making sampling bias an even greater concern).

Notice the choice of words in the second paragraph. He uses "fails in over 40%" instead of "is effective in roughly 60%". By focusing on failures, he can call it ineffective and "unreliable". 60%, while not one of the more stellar effectiveness rates of current vaccines, is still better than even odds. It's also much better than 0% effectiveness, which is what one has without the vaccine.

Finally, he calls attention to the VAERS and VICP, claiming they reveal "irrefutably" that flu vaccine can cause permanent disability and even death. First off, remember the limitations of VAERS data. A report does not equal proof of causation. That requires further investigation. Similarly, a VICP award does not establish causation in a scientific sense, only a legal sense of "more likely than not", or "50% plus a hair". That aside, let's look at the number of claims filed in VICP for death for the flu vaccine. From the start of VICP in 1988 thru May 1, 2013, there have been 35 claims for death. That is about 1.4 per year, on average. The linked page does not indicate how many, if any, of these were compensated. But, let's just assume that that number is accurate. How does that compare with deaths from the flu itself? Well, looking at only pediatric deaths, we find that in the '09-'10 season, 282 children died from the flu. There were 123 pediatric deaths the following season, 34 children died from the flu last year, and so far this year 146 children have succumbed to the flu. In four flu seasons, limiting ourselves only to children who have died, there have been almost 17 times as many deaths from the flu as from those claimed to be caused by the vaccine. When we include all ages, the estimates range from 3,000 to as many as 49,000 influenza deaths per year. On a risk vs. benefit analysis, then, getting the vaccine is far, far better than not getting it. Rep. Thiesfeldt is therefore being a wee bit dishonest in his characterization of the vaccine compared to the virus.

But what is actually in this legislation? Let's start with the definitions:

(a) “Employee” includes any intern and any volunteer, regardless whether the individual is compensated.

(b) “Employer” means any person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district, long−term care district, or other public or quasi−public corporations as well as any agent, manager, representative, or other person having control or custody of any employment or place of employment or of any employee.

Interns and volunteers are included in the term "employee"? That means that an employer cannot tell a volunteer to stop volunteering if they refuse a flu vaccine. Methinks this oversteps a bit.

Per the proposed bill, employers are barred from doing any of the following:

(a) Demote, suspend, discharge, or otherwise discriminate against an employee or contractor for refusing to be vaccinated against seasonal influenza.

(b) Refuse to hire a prospective employee, or renew the contract of an employee or contractor, on the basis of vaccination status for seasonal influenza or refusal to be vaccinated against seasonal influenza.

(c) Require any employee or contractor to receive a vaccination against seasonal influenza, if that employee or contractor declines the vaccination for any reason in writing after receiving the information described in sub. (3).

(d) Require employees, or contractors, who are not vaccinated against seasonal influenza to wear masks in retaliation for refusing the vaccination against influenza or require employees or contractors in a health care setting to wear masks in a manner that exceeds a requirement for an individual to wear a mask upon entry into the room of a patient who has, or is suspected to have, influenza.

In part, I agree with the bill. If an employee of a health care facility refuses the flu vaccine, the employer should not simply fire the person; they must offer some alternative arrangement. After all, someone with a medical contraindication to a vaccine would not be fired. It is not within their control to get the vaccine. So, as far as firing someone simply because they refused immunization, sure. I agree with that. However, an employer should be able to terminate (or deny hiring) an individual who refuses both the vaccination and the reasonable alternative (e.g., masks). Health care facilities have a duty to their patients to take reasonable precautions to protect their health. Parts (a) through (c) are very poorly written, because they do not address the issue of alternatives.

I also have big problems with part (d). First, we have already seen media reports of health care workers complaining that they should not have to wear a mask if they refuse the vaccine. Indeed, the Massachusetts Nursing Association even issued an incredibly misguided policy statement calling such requirements unfair. It is very easy for an employee to claim that they are being punished or discriminated against if they are required to wear a mask, even if the facility's policy requires all non-vaccinators to wear a mask (e.g., those who would get vaccinated if they were not medically contraindicated). This law would open the door to frivolous claims being lodged by disgruntled workers (and volunteers, let's not forget them). The other major issue with this part is that it limits employers' masking policies only to wearing a mask when entering the room of a patient suspected of having or diagnosed with influenza. Interacting with patients and visitors outside of their room? No mask required. Employee has or is suspected of having the flu? They don't need to wear a mask if they are not vaccinated.

Really, the only good parts of Rep. Thiesfeldt's proposed legislation were the final two sections:

(4) ILL EMPLOYEES. An employer may request or require an employee, or contractor, who is showing symptoms of seasonal influenza to leave the place of employment while ill.

(5) PROVIDING VACCINE. An employer that requests that any of its employees or contractors be vaccinated against seasonal influenza shall provide or arrange for vaccination against seasonal influenza at no cost to those employees or contractors.

Employees who have flu-like symptoms should stay home, and if an employer is going to require vaccinations, they should provide them free to their employees.

One other issue that isn't mentioned in the bill at all: epidemics. In the event of a flu epidemic occur, this bill would prohibit a health care facility from enacting measures to protect the health of both its patients and its employees, volunteers and interns. While the vaccine is not perfect and can be improved, it is a very valuable tool in helping to prevent the spread of the flu. Combined with covering coughs/sneezes and good hand hygiene, it is very effective, indeed. And many people (even health care workers) are pretty bad about properly covering their mouths when they cough and sneeze, let alone washing their hands afterward.

I want to go back to one issue I mentioned toward the beginning of this post, and that's the matter of the scope of the legislation. It is limited only to the influenza vaccine. I found this rather interesting, since many states require health care workers to be immunized or show proof of immunity to some other communicable diseases. There is one other disease that health care workers are required to be immunized against or show proof of immunity: rubella. According to Wis. Adm. Code § 124.07:

The hospital's employee health program shall include vaccination or confirmed immunity against rubella for everyone who has direct contact with rubella patients, pediatric patients or female patients of childbearing age. No individual without documented vaccination against or immunity to rubella may be placed in a position in which he or she has direct contact with rubella patients, pediatric patients or female patients of childbearing age, except that individuals placed in these positions before February 1, 1988 shall have one year after February 1, 1988 to comply with this requirement, and that individuals newly placed in these positions on or after February 1, 1988 shall have 30 days after they begin working in these positions to comply with this requirement.

So a hospital can use an employee's rubella immunity status as a condition of employment in order to protect the health and well-being of their patients. I wonder why Rep. Thiesfeldt didn't make his bill more far-reaching and include all immunizations. He's already shown that he is comfortable fudging the facts to support his position. Why limit it to only the flu vaccine? Maybe it's because he incorrectly perceives the flu as an illness of no consequence. Perhaps he realizes that allowing refusal of rubella immunization would be disastrous. Maybe this is a foot-in-the-door tactic. Start small, then expand, much like the Wedge Strategy of creationists. Whatever the reason, Wisconsin law already allows for hospitals to require employees to be immunized. Actually, it goes even further than that and requires, with no exceptions, that employees who are in certain positions be immunized or show proof of immunity against rubella. If they aren't, the employer can refuse to hire them or can reassign or even fire the employee. This is to protect those vulnerable patients the hospital has a mandate to protect.

In the end, Rep. Thiesfeldt's proposed bill boils down to misguided personal beliefs versus science and the public good. It pits personal rights based on fear, uncertainty or doubt against an employer's rights to establish science-based policies that protect the patients they serve, as well as their other employees. Through this legislation, Rep. Jeremy Thiesfeldt makes it more difficult for public health organizations to fight the spread of the influenza virus, choosing to befriend the flu, rather than the public.

If you live in Wisconsin, I urge you to contact your representatives and urge them to vigorously oppose this bill once it is introduced. You can find your representative's email address here. A copy of the legislation and the accompanying memo can be obtained through Rep. Thiesfeldt's office. His email address is listed at that same link.

Edited to add: Reuben Gaines notes several of the logical fallacies Rep. Thiesfeldt uses in discussing the bill.