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Behind the mask

Does the flu vaccination policy at Children’s Hospital violate employees’ civil rights?

Behind the mask

Union leader Nicole Kennelly demonstrates the mask hospital workers must wear all day long if they refuse a vaccination. Photo by Will Parson.

Whether she’s resuscitating an infant in the Neonatal Intensive Care Unit or taking a break in the nurses’ lounge at Rady Children’s Hospital, Gillian Kirkpatrick wears the markings of the non-vaccinated: a green name badge and a surgical mask.

She’s not too happy about it. Kirkpatrick, a senior nurse on the hospital’s Neonatal Transport Team, thinks the hospital’s new flu vaccination policy goes too far.

The policy requires that all staff either get a shot for H1N1 and seasonal flu or don the badge and mask. It violates her privacy, she says. And parents have been giving her uneasy looks.

“They definitely look like they’re concerned about why I have a mask on,” she told CityBeat. “I think it’s difficult to convince parents that I’m not sick.”

Children’s Hospital’s vaccination policy, the subject of a court battle between the hospital and the union representing nurses and technicians, has raised legal questions about the lengths healthcare providers can go to prevent the spread of the H1N1 virus.

The hospital maintains that its policy is a necessary measure against the spread of a novel flu strain that has hit children particularly hard.

Nicole Kennelly, executive director of United Nurses of Children’s Hospital (UNOCH), said she’s heard, through dozens of e-mails and numerous conversations, from staff who complain about wearing masks for 12-hour shifts and having to take too many trips outside or to the cafeteria—the only two places where staff can remove their masks—to get a drink of water. Non-vaccinated employees says they’ve been subject to harassment from supervisors and threats of termination if they don’t wear their masks.

Some legal experts say the masks and badges violate employees’ civil rights. “I would say it appears to be a HIPAA violation,” said Abner Weintraub, president of The HIPAA Group, a training and consulting firm that specializes in the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, the federal law that protects the medical privacy of U.S. citizens.

Controversy began shortly after the policy was introduced in November. The hospital rejected a union grievance, so UNOCH filed suit in U.S. District court, alleging that the hospital violated the union’s collective-bargaining agreement and that the policy violates California and federal law.

In its defense, hospital lawyers contend that the hospital can institute policies unilaterally and that the union’s collective-bargaining agreement contained no provisions for vaccination policies, according to court documents.

Even if the policy violates the California Health and Safety Code, the California Civil Code and HIPAA, the lawyers argued, it doesn’t matter, “since the [collective-bargaining agreement] does not contain any provisions that create an obligation to comply with these statutes,” court papers say.

Last month, a judge turned down the union’s request for a temporary restraining order on the policy. So, when the H1N1 vaccine became widely available just before Christmas, Children’s Hospital promptly began to give employees free vaccinations. Those who declined got surgical masks and transparent green badges for their nametags.

After a hearing on Monday, Judge Michael Anello announced that he would soon decide whether to grant the union’s motion to compel arbitration of its grievance.

Ben Metcalf, a hospital spokesperson, said 96 percent of the hospital’s 3,500 employees have been vaccinated for H1N1 and seasonal flu while about 140 have not for medical reasons or because they are “conscientious objectors.”

The Centers for Disease Control and Prevention (CDC) recommends vaccinations for healthcare workers, young people, pregnant women, people with chronic health problems and people who work or live with infants, which pretty much covers everyone at Children’s Hospital.

The vaccine generally has mild side effects, the CDC reports. But fears spread about possible side effects when a Washington Redskins cheerleader developed what was initially alleged to be dystonia, a neurological disorder, after being vaccinated in October. (Her controversial doctor’s diagnosis was widely criticized later.)

Judging by the stern words of its vaccination policy, Children’s Hospital seems to reserve its sympathy for patients: “Some [healthcare workers] believe that the vaccine makes them sick; others think that they are not part of a priority group, or that they never get sick. Not one of these reasons is based on fact.

“The fact is that the injection for immunization is a killed virus vaccine so it cannot make you sick. Two other truths: you shed the influenza virus 24-48 hours BEFORE you have symptoms and every year healthcare workers transmit influenza to patients in the hospital—and some die.”

In fact, H1N1 is so widespread that there’s no way to document whether healthcare workers have given it to patients, said Dr. Wilma Wooten, public health officer for San Diego County.

What’s clear is that infants and toddlers have been the most likely to be hospitalized in California, according to the California Department of Public Health. And to prevent the spread of the virus, the CDC recommends surgical masks for people like Kirkpatrick, the non-vaccinated nurse, who is required to wear a mask and badge as she picks up sick infants and delivers them to county hospitals for treatment.

Declining vaccination was a “lifestyle choice,” she said. A believer in holistic medicine, she’s a vegetarian, does yoga, gets monthly acupuncture treatments and owns a company that sells items like handmade soap, organic rosewater and Dead Sea salts.

“I don’t want to put something foreign into my body when I can get my immune system boosted through acupuncture,” she said.

She cringes at doctors’ suggestions that she doesn’t care about her patients and believes that she does enough to stay well. In the 29 years she’s worked at Children’s Hospital, she said, she’s never once gotten sick during the respiratory-flu season.

She thinks the masks and badges have more to do with intimidating staff than protecting patients.

“They say that they’re just concerned about the patients. Well, the patients are not in our lounge, so I should at least be able to eat my food or drink my water in the lounge,” she said. “They say they’re worried about the coworkers. Well, if everybody’s gotten their shot, what are they worried about? They should be so protected that I really am no threat to them.

“I think the reason they only gave us those two places [where masks can be removed] is they want to make it as miserable as possible so that we will give in and get the shot.”

The hospital doesn’t see anything wrong with the policy. “Seeing someone wearing a surgical mask inside of a hospital isn’t that unusual, and we don’t feel that that sort of makes them stand out from others,” Metcalf said. “And the fact that you have a different color on your badge probably isn’t going to cause attention to yourself.”

Metcalf said the badges are an enforcement measure for employees who must wear masks. Patients and visitors are not told about their significance, he said.

But legal experts still find the badges legally questionable. “It kind of smacks of wearing a yellow star on your arm,” said Joy Delman, a health-law professor at Thomas Jefferson School of Law.

“If you asked patients to wear any sort of name tag or tag that indicated anything about their health status—I’m HIV positive, I’m not; I’m vaccinated, I’m not; I’ve had heart surgery, I haven’t—there would be complaints up the ying-yang about it, and for good reason,” said Weintraub, a leading expert on HIPAA law. “And the law doesn’t distinguish between the hospital’s employees and the hospital’s patients when it comes to what’s allowable to disclose.”

During the past several months, unions have filed suit over similar vaccination policies at hospitals in Iowa, Washington State and Nevada. Hoping it might help the industry avoid these legal conflicts, the American Nurses Association (ANA), a national advocacy group, supports an H1N1 vaccination policy instituted by a “higher power” like the federal government.

“We like the idea of something standardized that a lot of people will be able to weigh in on at the very top level,” said Katie Brewer, a senior policy analyst with the ANA, “so that it’s something that’s fair and that works for everybody and that covers everybody.”   

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This story was published in this week’s issue of San Diego CityBeat.

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