Testimony delivered by Eileen Avery, MS, RN, Associate Director, NYSNA Education, Practice and Research Program to the State Hospital Review and Planning Council Codes and Regulations Committee, July 23, 2009, New York, NY.
Speaking on behalf of its 37,000 registered nurse members, the New York State Nurses Association opposes these amendments to the Official Compilation of Codes, Rules and Regulations of the State of New York and urges that they not be adopted. While the association agrees that nurses and other healthcare providers should be immunized for seasonal influenza, it does not agree that nurses should be required to be immunized as a condition of employment.
The state currently requires that healthcare workers be immunized for measles and rubella, diseases that can be eradicated by one or two immunizations in a lifetime. We have seen the benefit to the public by the virtual elimination of measles, mumps, rubella, smallpox, and polio.
Influenza, however, cannot be eradicated. It is a constantly mutating virus and the flu vaccine must be administered annually. If this proposal takes effect, nurses will have to submit to vaccinations every year for the remainder of their careers in order to continue working or to get jobs in direct patient care. And will this really ensure patient safety or prevent the spread of a flu virus?
The seasonal flu vaccine is not 100% effective and sometimes is highly ineffective, as it was in 2005 and again in 2007. There is no guarantee that in any given year, the public will benefit from mandatory immunization of healthcare providers.
As I said, the Nurses Association encourages nurses to voluntarily get flu shots. We question whether the Department of Health and healthcare facilities have devoted sufficient time and resources to promoting voluntary immunization. Successful programs include educational components that target specific objections, offer the vaccine at no cost at a time and place convenient for workers, and employ other strategies that have been proven to work. In June 2009, the Joint Commission issued a monograph with 28 examples of hospitals that have improved their immunization rates.
Immunizations are only part of an overall strategy to prevent the spread of influenza virus. When novel H1N1 influenza appeared this spring, nurses were concerned about taking the proper infection control measures when caring for suspected H1N1 cases. When the Nurses Association evaluated the readiness of hospitals to deal with a possible public health emergency, we were shocked to discover that many facilities were unprepared.
Influenza is transmitted three ways: droplet (between 5 and 10 microns), airborne aerosol (less than 5 microns), and contact. There is evidence that at least some infection is spread through the airborne route. In its Standard 29 CFR 1910.134, the Occupational Safety and Health Administration (OSHA) requires that healthcare workers be given properly fitted N-95 respirators to protect against airborne infection. But, in New York State, some hospitals did not have enough N-95 respirators available and had not performed the necessary fit testing. Some had not performed the OSHA-required risk assessment process.
Is it possible that the DOH and healthcare facilities see mandatory immunizations as an “easy fix” that promises to prevent workers from contracting both seasonal flu and H1N1? By providing flu shots, will hospitals be able to avoid establishing and implementing effective infection control policies and procedures? What strategy does DOH have to ensure that federally mandated infection control procedures are being followed?
All recommendations from OSHA, the Centers for Disease Control and Prevention, and other epidemiology and workplace safety organizations emphasize the “risk” to healthcare workers for contracting and spreading the flu virus. None propose mandatory immunization, by the way.
Recommendations for preventing the spread of infection are based on hazard assessment and determining the risk to workers from the identified hazards. The proposed regulations ignore the risk assessment process, but rather apply a “scorched earth” approach. Ignoring hazard assessment misses the key information needed to create a truly effective prevention program.
The Nurses Association questions the authority of this body to impose such a sweeping mandate as an emergency rule, without the declaration of a public health emergency. When there is a public health emergency and the governor or state health official initiates a public health strategy to curb the spread of a communicable disease, the state may mandate quarantine, vaccine, or other such measures for the public good. But the action must have a real and substantial relation to an immediate threat to the public health and safety [(Jacobson v. Massachusetts 197 U.S. 11 (1905)].
We are concerned that nurses would be exempted from the proposed mandate only if the influenza immunization is medically contraindicated. The proposed regulations have no provision for religious or cultural preferences regarding immunization, effectively blocking individuals who have these beliefs from earning their livelihood. It’s possible that nurses will leave the profession or choose another career because of this onerous mandate; a serious threat at a time when the shortage of nurses in New York State is expected to reach 20,000 within a decade.
In summary, there are major questions about this proposal that need to be addressed before action is taken. As no public health emergency currently exists, we recommend that you withdraw this proposal and convene a task force of stakeholders to assist in developing an approach that will achieve the desired outcome.