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Department: Leadership Q&A

The legality of mandatory vaccination and overtime

Raso, Rosanne, MS, RN, NEA-BC

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doi: 10.1097/01.NUMA.0000410908.22209.b5
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Q Can my employer require me to get the influenza vaccination even if I don't want to?

I'm always surprised by the challenge of influenza vaccination for healthcare workers. We're used to mandatory vaccination without protest for contagious diseases such as rubella or hepatitis B. Why resist protecting yourself and others from the flu? The effectiveness of influenza vaccination in decreasing disease transmission is clear in the literature. We also have infection prevention and control standards from The Joint Commission that require us to increase vaccination rates. The CDC has recommended vaccination for healthcare workers for 30 years.

The question is whether it can be mandated. If the state you live in requires it, then the question becomes a moot point. However, there are currently no states taking that position. In 2009, the Department of Health in New York required mandatory H1N1 flu vaccination for healthcare workers, and it was challenged in the courts. Does public health trump perceived violation of personal rights? The mandate was withdrawn after several months due to supply shortages, so the opportunity for precedent in New York was lost. Labor unions have successfully challenged mandatory programs nationwide. Negotiation may be required, and would be beneficial even if not required.

There are hospitals with successful mandatory programs, such as Children's Hospital in Omaha, Nebraska, and BJC Healthcare in the Midwest, without legal challenge or widespread employee dissatisfaction. In the event of an approved exemption, the employee may be expected to wear a mask during flu season.

Voluntary programs with aggressive marketing, easy access on all shifts, frequent updates, multidisciplinary champions, and using “push” principles have documented success in improving voluntary vaccination rates, some even over 90%. Get vaccinated—it's the right thing to do!

Q Is it legal to mandate that staff members come to work during a weather emergency when they aren't previously scheduled to do so?

This is an interesting scenario because the use of mandatory overtime is usually associated with staff members who are at work already and required to stay after their regular work schedule, not those at home. Mandatory overtime has long been fought for good reason; it's a huge dissatisfier and may affect patient safety due to the effects of fatigue on performance.

According to the latest American Nurses Association report on mandatory overtime, 16 states have restrictions either by law or regulation. A declared disaster or adverse weather condition is frequently excluded. In addition, many states protect employees from punishment for refusing to work overtime.

Mandatory overtime shouldn't be the first approach to a staffing problem; it should be a last resort. Voluntary overtime, reassignment, per diem workers, patient acuity/activity mitigation, and leadership involvement are all options to be exhausted before mandatory overtime is invoked.

A weather emergency is usually predicted, giving time to plan for adequate staffing. Calling in staff members from home who can't safely navigate the environment to come to work would be unwise. However, voluntary overtime for staff members who can get in is, of course, helpful in those circumstances. In my experience during weather emergencies, staff members who are on duty often volunteer to take turns resting to provide patient care until new staff can arrive. Coordination of sleeping and transportation arrangements during adverse weather conditions contributes to provision of adequate staffing.

It may be legal in your state to mandate work hours in either a disaster or weather emergency; however, it's always best to use other options first. Know the provisions and language in your local laws, regulations, collective bargaining agreements, and/or hospital policies, although they may be silent to this specific scenario. Staffing under such conditions is very challenging and the ultimate decision should be in favor of safe patient care.

© 2012 by Lippincott Williams & Wilkins, Inc.