FAQ: How should unionized or organized employee groups be factored into mandatory program design?

How should unionized or organized employee groups be factored into mandatory program design? [FAQ Date: April 1, 2013]
The case studies we have posted (http://paHCPfluvax.org/case-studies/ ) and the literature generally suggest that the most effective strategy is to involve unions or organized employee groups as early in the planning process as possible. We are aware that some unions have treated such mandatory immunization programs – especially when they make such immunizations a condition of employment – as a contract issue, to be negotiated along with other work rules and contract terms. While each program context will be unique, we believe that early identification of specific issues or challenges for union labor and addressing them with evidence-based argument is the most effect strategy available. In the current PADOH Honor Roll noted earlier, 7 of the 44 healthcare institutions have unionized employees.

We note that  Randall et al [citation and excerpt below] provide a help discussion on union contracts and mandated programs and we urge a full reading of the article:

Legal considerations surrounding mandatory influenza vaccination for healthcare workers in the United States
Lisa H. Randall, Eileen A. Curran, Saad B. Omer
Volume 31, Issue 14, Pages 1765-1878 (3 April 2013)
Review Article

“5. Effect of union contracts
Because the increase in vaccination mandates in healthcare institutions has been so recent, little case law has accumulated on how union contracts affect mandates. In the six contested cases for which records have become available as of this writing, the central issue has been the characterization of the disputed mandate. Unions frame mandates as new conditions of employment, over which employers are obligated to bargain. Employers cast man-dates as exercises of their managerial rights to establish patient care policies, which are not subject to bargaining….

“…Notably, the Ninth Circuit and the court in the Nevada HCA case both saw policies explicitly threatening disciplinary action for vaccine refusal as creating new conditions of employment and thus triggering bargaining obligations [55,64]. The Ninth Circuit may also have provided guidance for future strategy when it looked for evidence of public policy favoring mandates, such as laws requiring healthcare facilities to vaccinate healthcare workers against influenza. Similarly, in the University of Iowa case, it was determined that the Centers for Disease Control and Prevention’s published influenza control guidance does not overtly recommend mandatory vaccination policies [10,60]. Thus, the limited evidence available so far suggests that unionized healthcare employers may be wise to leave new vaccination mandates silent on the issue of disciplinary consequences….”

[55] Virginia Mason Hosp. v Washington State Nurses Ass’n, 511 F.3d 908 (9th Cir. 2007).

[64] Motion for Preliminary Injunction [transcript], Service Employees International Union Local 1107 v Healthcare Corp of Am [sic], 2:09-cv-02094-RCJ-PAL (Nev 2009).





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