By Steve Thorpe
Legal News
Diseases like measles and pertussis (also know as whooping cough), once nearly eradicated, are flaring up in many states including Michigan. A new state policy in effect at the beginning of the year mandates that families who don’t want to immunize their children can no longer get a waiver simply by mailing in a form. The modified rule requires non-medical exemptions to be certified by the local health department, which allows health workers to provide education on the safety of immunizations and potential consequences of going without them. Rebecca S. Davies is a shareholder based in Butzel Long’s Detroit office. Davies concentrates her practice primarily in the areas of employment law and commercial litigation. She has represented employers in both the private and public sectors for almost twenty years and regularly defends cases in federal and state court and before federal and state administrative agencies.
Thorpe: Given that diseases cross borders easily, are there any federal laws that require immunization for healthcare workers? Do you see that changing?
Davies: Healthcare workers are at risk for exposure to serious, and sometimes deadly, diseases. Healthcare workers include physicians, nurses, emergency medical personnel, dental professionals and students, medical and nursing students, laboratory technicians, pharmacists, hospital volunteers and administrative staff.
Despite the fact that healthcare workers have direct contact with patients or handle material that could spread infection, no federal law mandates immunizations for healthcare workers. At most, the Centers for Disease Control and Prevention only recommends that healthcare workers are up-to-date with the recommended vaccines.
History has demonstrated that forced vaccination only occurs in times of outbreak. Obviously, nobody would want this to occur simply to obtain mandatory vaccinations. Instead, it is my hope that through further education to employees, voluntary vaccinations will increase.
Thorpe: How do Michigan’s laws on vaccinations compare to those of other states?
Davies: Michigan does not require that heathcare workers to be vaccinated for measles/mumps/rubella (MMR), influenza, varicella, or pneumococcal. This is consistent with the majority of states. (On the Internet, see www2a.cdc.gov/nip/StateVaccApp/statevaccsApp/AdministrationbyPatientType.asp?PatientTypetmp=Hospital%20Employees.)
Dr. Anne Schuchat, director of the Centers for Disease Control and Prevention (CDC) National Center for Immunization and Respiratory Diseases, said during a Jan. 29, 2015, press conference that measles are so contagious “that if one person has it, 90 percent of the people close to the person who aren’t immune will also be infected.” According to the CDC’s Feb. 23, 2015, figures, between Jan. 1, and Feb. 20, 2015, 154 people from 17 states and the District of Columbia were reported to have contracted measles. Despite the recent outbreak of measles throughout the United States, only 10 states require healthcare workers to be vaccinated (Alaska, Illinois, Maine, Maryland, Maine, New Mexico, Oklahoma, Rhode Island and Wisconsin).
Michigan does not require healthcare workers to be vaccinated for the measles. In fact, Michigan does not even require that employers offer the vaccination to employees. Instead, Michigan only requires that healthcare facilities offer the hepatitis B vaccine to certain employees. These categories of employees consist of occupations that require procedures or other occupation-related tasks that involve exposure or reasonably anticipated exposure to blood or other potentially infectious material, or that involves the likelihood for spills or splashes blood or other potentially infectious material.
However, an employee can decline the hepatitis B vaccination. If an employee initially declines vaccination, but at a later date, while still covered under these rules, decides to accept hepatitis B vaccine, the employer shall provide the vaccine at the later date.
Thorpe: Despite the lack of state law, can an employer request an employee to be vaccinated?
Davies: Even though there is no federal or state mandate, an employer can request a healthcare employee to be vaccinated. Indeed, vaccinations policies are commonplace in healthcare facilities. These policies are intended to reduce the chance that the healthcare employee will get or spread vaccine-preventable diseases. These policies not only protect the employee but their patients and their family members.
In addition to requiring vaccination, an employer may attempt to prevent or stem an outbreak through a variety of other methods, including, offering voluntary immunization, education on the benefits of vaccination, education on methods to prevent disease transmission, or to simply provide information on where employees can receive vaccinations and educate them as to the insurance coverage.
Thorpe: Can an employee refuse an employer’s request to be vaccinated for religious grounds.
Davies: An employee can generally refuse to be vaccinated for medical or religious grounds. For example, Christian Scientists generally consider medical interventions unnecessary. Further, pregnant women and people with compromising health conditions generally cannot receive vaccines.
If the vaccination is refused, the employer has the right to provide other reasonable accommodations, including reassignment or wearing other protective equipment, such as masks, where appropriate. The employee has duty to cooperate with accommodation measures suggested by the employer, unless doing so would compromise his or her religious beliefs.
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