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9th Circuit: Employer May Not Require Flu Immunizations

By Chris Arbery and Valerie Barney   1/18/2008
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The 9th U.S. Circuit Court of Appeals upheld an arbitrator’s decision that prohibited a hospital from requiring its nurses to receive flu immunizations.

To limit health risks to its patients, Virginia Mason Hospital had long recommended that its employees receive flu immunizations. In 1998, the hospital began offering the immunizations at no cost to employees, but by 2004 the employee immunization rate was only 55 percent.

In September 2004, the hospital’s management notified employees that, unless an employee had a religious objection or a documented vaccine allergy, proof of flu immunization would be a fitness-for-duty requirement. An employee who failed to provide proof would face termination unless the employee agreed to take, and pay for, flu prophylaxis medication. Because of a shortage in the flu vaccine, the hospital delayed implementation of the immunization requirement until the 2005-2006 flu season.

The hospital employed 600 to 700 nurses who were represented by the Washington State Nurses Association (WSNA). Prior to the 2005 flu season, the WSNA filed a grievance under the collective bargaining agreement (CBA), arguing that the hospital was required to bargain with the union regarding the immunization requirement.

In August 2005, the arbitrator sustained WSNA’s grievance. The arbitrator found that the immunization requirement was a condition of employment and therefore was a mandatory subject of bargaining.

The hospital filed an application with the district court to vacate the arbitrator’s award, but the district court upheld the arbitrator’s decision. The hospital appealed.

In its opinion, the 9th Circuit acknowledged the important purpose of the immunization requirement, but stated that an arbitrator is entitled to “considerable deference” and an arbitrator’s award should be vacated only if it ignored the plain language of the CBA or if the award was not a plausible interpretation of the contract.

The hospital claimed that three provisions of the CBA allowed it to unilaterally implement the immunization requirement: the patient care priority clause, the management rights clause and the clause waiving mandatory bargaining for all matters not discussed in the CBA or in negotiations. The court found that the arbitrator did not ignore the plain language of these provisions; he simply found them unpersuasive as sufficient authority to implement the immunization requirement without bargaining.

The court also found the arbitrator’s decision to be a plausible interpretation of the contract. The arbitrator framed the issue as whether the immunization requirement was a personnel policy, which would fall under the management rights clause, or whether it was a condition of employment, which would be subject to bargaining. Although the hospital argued that the arbitrator exceeded his authority by implying a duty to bargain from the CBA’s preamble and union recognition clause, the court held that an arbitrator is not bound to the express wording of the CBA, but may look to the “industrial common law” to infer a contract term where a CBA is silent. The court stated that the duty to bargain in good faith over terms and conditions of employment is of central importance to labor-management relations and found that the arbitrator did not exceed his authority in reading this duty into the CBA.

The hospital also argued that the arbitrator’s decision should be vacated as contrary to public policy.

The 9th Circuit found that state and federal hospital regulations regarding infection control, professional standards for nurses and a hospital’s potential tort liability for patient infections were inadequate evidence of an explicit public policy. The court noted that only one state, Arkansas, requires flu immunizations, and then only for employees of long-term-care facilities. Further, the hospital was unable to point to a case in which a hospital was found liable for an employee infecting a patient with the flu. Finally, the hospital was unable to show that bargaining over the immunization requirement would contravene the public policy supporting immunization.

Virginia Mason Hosp. v. Washington State Nurses Ass’n , 9th Cir. No. 06-35073 (Dec. 21, 2007).

Professional Pointer: This case demonstrates that, in the context of a unionized workforce, even clearly reasonable and legitimate rules for employees may be considered mandatory subjects of bargaining.

Chris Arbery and Valerie Barney are attorneys on the Labor & Employment Team at Hunton & Williams LLP in Atlanta.

Editor’s Note: This article should not be construed as legal advice.

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