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Improving immunization rates – what can the Law do? 

Many of us are concerned at the rise of cases of preventable diseases and the role played in that by the decision by a minority of parents not to vaccinate their children. One question is what, if any, effects would legal tool have on improving immunization rates? This article attempts to map out the available tools.

Note that the focus of this article is what the law can do, not what the law should do. The fact that a legal tool is available – i.e. Constitutional, can be enacted or used by the courts – doesn’t automatically mean it should be. I would, in fact, argue that some of the tools discussed here shouldn’t be used in the context of immunization – in most circumstances, forced vaccination and criminal law are inappropriate. But mapping out what’s available seems like a useful first step in the discussion of what the law should do. The goal of this post is to provide a menu of options and a more or less logical way to classify them. My hope is that setting out what’s possible would help us think through what is desirable.

 

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Health Care Workers, Flu Vaccines, and Work Place Discrimination

In a previous post, I described a New Jersey Court of Appeals case in which Ms. Valent was denied unemployment benefits because she refused flu vaccines without claiming the religious exemption. I explained that the hospital was not constitutionally required to provide a religious exemption, and that doing so was a losing proposition from a hospital’s point of view.

In the comments following that post, it was correctly pointed out to me that there is another claim I should have addressed: a claim that the hospital was required to provide a religious exemption under the Civil Rights Act of 1964. This did not come up in the case itself: the court reinstated the nurse’s unemployment benefits on constitutional grounds, though problematic constitutional grounds. But since I argue that hospitals should not offer a religious exemption, I need to address whether the hospital is required, under Title VII, to offer an accommodation. Read More »Health Care Workers, Flu Vaccines, and Work Place Discrimination

No faith – healthcare workers, vaccines and religion

June Valent started working for Hackettstown Community Hospital, New Jersey, in 2009. In 2010, the hospital adopted a policy requiring workers to be vaccinated against influenza, unless “there [was] a documented medical or religious exemption. For those with an exemption, a declination form must be signed and accompanied with an appropriate note each year.” An employee claiming a religious exemption just has to sign a form and bring a note from a religious leader. Employees using an exemption were required to wear a mask.

To her credit, Ms. Valent was unwilling to pretend her reasons for refusing the vaccine were religious. Less to her credit, she refused to be vaccinated, even though she had no medical reason, and vaccinating would reduce her chances of contracting influenza and transmitting it to her vulnerable patients. She did agree to wear a facemask, as any vaccine exempt worker would.

The hospital fired Ms. Valent for violating the policy. The issue under consideration was whether she was entitled to unemployment benefits. Under New Jersey law, an employer may deny unemployment benefits if the employee engaged in misconduct, which includes violating a reasonable rule of the employer. After somewhat complex proceedings, the Appeal Tribunal of the Board Of Review of the Department Of Labor decided to deny her the benefits because the employer’s requirements were “not unreasonable.”Read More »No faith – healthcare workers, vaccines and religion

Parents, children, loss of custody and immunization

This article uses the very recent decision of the Supreme Court of Oregon in Department of Human Services v. S.M. (pdf) to discuss a specific question: if parents lose custody of their children, can they still refuse immunizations? The Oregon Supreme Court joins others in saying that the answer is no. As discussed, this is the right result.

Loss of custody and immunization is a key issue of parental rights on several levels. Let’s discuss the case in Oregon in detail

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Anti-vaccine claims, misrepresentation and free speech

Imagine the following scenarios:

  1. A mother comments on an anti-vaccine Facebook page belonging to a Doctor known for her opposition to vaccines, saying that she is about to travel to a third world country for which the CDC recommends certain vaccines. She asks what vaccines, if any, she should get for her unvaccinated eight-months old. The doctor responds with “none; these countries are perfectly safe, there’s no higher risk there”.
  2. Another mother comments on the same Facebook page saying that a dog bit her daughter. She asks whether she should, in this case, get the rabies vaccine or tetanus vaccines. The doctor recommends against it, deviating from the standard of care.
  3. An anti-vaccine organization publishes an article describing measles as a “mild childhood disease,” potentially beneficial to the immune system and repeating the debunked claim that the MMR vaccine causes autism. It encourages readers not to vaccinate.
  4. An anti-vaccine doctor records a video recommending that citizens in a country that had polio discovered in the sewers avoid getting the Oral Polio Vaccine, as their Ministry of Health recommends. The doctor claims that: 1) Polio is not generally dangerous, and the polio epidemics in the United States were caused by use of DDT, 2) the polio vaccine is more dangerous than polio itself, or 3) vitamin C can prevent or treat polio.
  5. These claims are demonstrably false.
  6. An anti-vaccine site has an article suggesting that tetanus is not usually dangerous and can be prevented by letting wounds bleed and cleaning them with hydrogen peroxide.

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Religious exemptions for vaccination – abuse and reform

In November 2013, the New Mexico Department of Health published the results of a survey examining people getting an exemption from school immunization requirements. The survey found that most people getting an exemption – 54.9% – explained their reasons to be “philosophical” or personal belief, including concerns about vaccine harms, a preference for natural immunity, and a belief they could protect their children in other ways. 

The problem is that New Mexico does not offer a personal belief exemption. It offers medical exemptions and religious exemptions for vaccination only. In other words, these people got their vaccine exemption using an exemption that did not reflect their real reasons.

Our host, the Skeptical Raptor, invited me to describe an article I wrote on this that is forthcoming in the Hastings Law Journal. The article argues that: