In a ruling that will surprise many public health officials, the Ninth Circuit has upheld an arbitration decision that found that nurses at Virginia Mason hospital in Washington could not require that nurses receive flu shots as a condition for employment — a victory for the Washington State Nurses Association. It will likely be a concern for public health officials planning for pandemic and other risks, particularly given the court’s recognition of the strong public health reasons for the rule.
The Court’s decision turned greatly on the deference that must be given to the factual findings of an arbitrator and the language of a collective bargaining agreement (“CBA”). However, the Court’s recognition of the obvious public health rationale for the rule proved not to be determinative:
We recognize Virginia Mason’s commendable desire to
protect its vulnerable patients from infection with the flu. We
also recognize, as the arbitrator did, “the impressive list of
health authorities and experts who recommend that health
care workers be immunized because they are in a highly con-
tagious environment and deal with patients who are at high
risk of contracting the flu.” At the same time, we recognize
that the arbitrator, as the party chosen by the hospital and the
union to resolve grievances under their CBA, is entitled to
considerable deference and that his decision in this matter
may be vacated only if it failed to “draw[ ] its essence” from
the CBA itself, United Steelworkers of Am. v. Enter. Wheel &
Car Corp., 363 U.S. 593, 597 (1960), or if it violated an “ex-
plicit, well defined, and dominant” public policy. E. Associ-
ated Coal Corp. v. United Mine Workers of Am., 531 U.S. 57,
62 (2000) (internal quotation marks omitted). We conclude
that neither of these standards for vacation is met here.
It is a bit surprising that the Nurse association would support the challenge, given their profession’s commitment to the best interests of the patients. The ruling may trigger state and federal legislation since it would undermine the current efforts to prepare for a pandemic and reduce the spread of deadly flu viruses.
The other question is the potential for tort liability. While causation is impossible to prove in most cases for a flu transmission, one could imagine a case of an isolated patient with such a claim.
For a copy of the opinion, click here