Massachusetts Nurses Association Sues for Right to Endanger Patients

Yesterday, I wrote about how comedian Rob Schneider not only does not know anything about vaccines, but does not seem to understand the Constitution very well, either. Schneider was recently dropped by State Farm Insurance because of his vocal opposition to vaccinations. Understandably, a company that, in part, focuses on public health would not want to be associated with someone who argues against measures aimed at improving public health. The "Makin' Copies" guy has no business going anywhere near health related issues.

As a celebrity, Rob Schneider uses his fame to spread misinformation about vaccines, frightening people away from one of the most successful health measures ever devised. His notions regarding immunizations put others at risk. Public figures, particularly those with some measure of fame, ought to be careful when they speak out on matters of science and medicine. They might think that they are well-informed, but not infrequently, their rhetoric is based on lies and misunderstanding. Though they may seek to help others, they only serve to increase risk. Schneider is but one of the latest actors speaking out on issues for which he has absolutely no qualifications. But he's not the only one who ought to leave well enough alone when it comes to people's health.

MNA - Working to increase patient risk

The Massachusetts Nurses Association (MNA) apparently shares some of Schneider's misguided ideas of personal liberty at the expense of patients.

I've written about the MNA before. A couple years ago, the organization, which represents nurses across the state of Massachusetts, issued a statement opposing mandatory masking policies. Several hospitals were moving toward requiring masks for those staff who did not get vaccinated against influenza. It is a reasonable measure aimed at protecting patients. The MNA viewed it as a punitive measure, rather than as a means of protecting the patients the hospitals served. This, despite a year earlier advocating for masking policies as an adjunct to immunization programs. They also tried to argue that there was no evidence that masks were effective at preventing inhalation of influenza viruses, despite there being studies that asked that very question.

So what is the MNA up to now? The organization is suing Brigham & Women's Hospital (BWH) over their mandatory immunization program. According to the nurses association's complaint, BWH is implementing an influenza vaccination program that requires all personnel to be immunized against influenza. The only exemptions reportedly allowed are medical or religious ones. Personal belief exemptions apparently are not allowed. Those who do apply for an exemption are encouraged, but not required, to wear a mask to minimize the risk of influenza. The complaint further states that under the policy, anyone who declines vaccination for a non-medical or non-religious reason can be denied access to patient treatment areas and may be subject to corrective action and possibly termination. (As an aside, I haven't been able to find a copy of the new policy. If anyone can forward a copy to me so I can verify the details, I'd appreciate it.)

At the center of this dispute is a Massachusetts law, 105 CMR 130.325 - Requirement that Personnel be Vaccinated Against Influenza Virus. This law requires all Massachusetts hospitals' personnel (staff, contractors, students, volunteers) be immunized against influenza every year, at no cost to the individual. At subpart (F), we see what exemptions are allowed:

(F) Exceptions

(1) A hospital shall not require an individual to receive an influenza vaccine pursuant to 105 CMR 130.325(B) or (C) if:

(a) the vaccine is medically contraindicated, which means that administration of influenza vaccine to that individual would likely be detrimental to the individual's health;
(b) vaccination is against the individual's religious beliefs; or
(c) the individual declines the vaccine.

(2) An individual who declines vaccination for any reason shall sign a statement declining vaccination and certifying that he or she received information about the risks and benefits of influenza vaccine.

There are two main elements to the Massachusetts Nurses Association's complaint. First, they argue that Massachusetts law requires that BWH allow exemptions due to personal beliefs, in addition to medical and religious exemptions. Second, the MNA asserts that the hospital cannot retaliate against those personnel who decline vaccination for personal reasons.

On the first issue, the law does seem quite clear that BWH must allow for personal belief exemptions. 105 CMR 130.325(F)(1)(c) prohibits a hospital from requiring an employee to be immunized against the flu if the individual simply declines it, for any reason or no reason at all. I fully agree that medical exemptions must be allowed, but (b) and (c)? Those provisions allow a health care provider to put their clients at increased risk without a justifiable reason. That part of the law is, in my opinion, detrimental to patients. However, until it is changed, the MNA is correct in that aspect of their suit.

The second claim, that the law prohibits punishment or retaliation, does not appear to me to hold water. I see nothing in the legislation that unequivocally prevents a hospital from making vaccination a condition of employment. Conceivably, BWH could allow a nurse (or any other personnel) to sign a statement indicating they declined the vaccine "just because" and still reassign, discipline or terminate the nurse. Although the law says that they cannot force an employee to get the vaccine, it doesn't say that they must keep that employee on, either. Despite the association's claim that the law "clearly states that hospitals cannot take punitive action against a nurse who declines to be vaccinated", that does not seem to be the case.

Why is the nurses association so opposed to mandatory influenza vaccination policies? They list a few reasons:

• Many nurses have had severe reactions to the vaccine, and, nationally, there have been thousands of serious documented reactions to these vaccines in recent years.
• The flu vaccines are at best an educated guess (between 50 – 60 percent effective) with no guarantee of preventing a specific flu.
• Nurses take great pains to employ infection control practices to prevent flu transmission
• And even when we vaccinate workers, there are no policies to ensure that the thousands of visitors who come in and out of the hospital are vaccinated and take proper precautions to prevent spread of the virus.

The first point is covered by the medical exemption. I would question, however, what their source is for the "thousands of serious documented reactions" claim. Perhaps they're referring to VAERS, as suggested by Trish Powers, chairperson of the bargaining unit for the Massachusetts Nurses Association at BWH. Powers should understand how VAERS works. It's rather frightening that she does not seem to understand the limitations of the reporting system. Also rather disturbing is that a nurses association promotes fear of a vaccine that has a pretty good safety record.

As to the second point, flu vaccines are a bit more than an educated guess. Quite a bit of research goes into figuring out what strains are most prevalent elsewhere in the world and show the greatest chance of continuing into the upcoming flu season in the U.S. Furthermore, while there is no guarantee that the vaccine will prevent infection, it does offer some level of protection. Let's look at it this way, if you do not get vaccinated, then you have zero protection, while if you get vaccinated, you're about 60% less likely to be infected and pass the virus on to others. And the more people are immunized, the greater the community protection. Of course, how effective the vaccine is depends on how well the vaccine matches the circulating strain. When the match is really good, the vaccine is up around 81%-88% effective. And even if it does not prevent influenza, it can reduce the severity of the disease.

I'm glad to hear that nurses take "great pains" to prevent the spread of the flu, but unfortunately that apparently does not include immunization. Ms. Powers writes that "[w]e know that we should stay home when ill". Great. Perhaps she can tell me how nurses know they are sick and contagious before they have symptoms. After all, someone who is infected with influenza can spread the disease to others a day before symptoms appear. Would the MNA encourage that nurses who are unvaccinated and exposed to influenza stay home for several days following a known exposure to ensure that they do not contract the disease and spread it to other patients?

The final point is not an argument against mandatory vaccination of personnel; it is an argument in favor of policies to educate visitors and, when necessary, restrict their access to patient areas. The MNA is essentially using a childhood complaint. "Billy's mom doesn't make him do chores!" It is a fallacious argument.

Brigham & Women's Hospital is required, by law, to allow employees to decline influenza vaccination for personal reasons. However, the law does not appear to prohibit corrective or punitive action toward those personnel who abstain from the vaccine for non-medical or non-religious reasons. BWH appears to be fully within their rights to reassign or even terminate, according to their disciplinary policy, staff who turn down the flu vaccine. The Massachusetts Nurses Association's suit against the hospital, and their opposition to the hospital's influenza immunization policy, puts selfishness and myth above the health and well-being of the patients the nurses are supposed to be caring for.

If you aren't willing to take reasonable measures to protect patients who are especially vulnerable to communicable diseases like influenza, perhaps you should find a different line of work.

Please let the Massachusetts Nurses Association know what you think of their law suit. Contact info can be found here. If you are a nurse in Massachusetts who supports patient health, I strongly encourage you to tell the MNA that their stance on mandatory vaccinations harms patients.

[Updated 11/20/15: Brigham & Women's Hospital filed a motion to dismiss the complaint in November 2014. On July 6, 2015, the court granted the motion to dismiss the MNA's complaint:

Click to enlarge.

If anyone has access to the documents and the legal background to comment, please feel free to clarify on what grounds the complaint was dismissed.]