Labor's lead

With hospital administrators working to address the myriad biological considerations swirling around the H1N1 flu pandemic, they might have overlooked one big social effect of the virus: the leverage it can lend to labor unions.

Thousands of California nurses were scheduled on Oct. 30 to declare a one-day strike on scores of Golden State hospitals to protest hospital administrators’ alleged inaction in preparing for the virus. The strike was called off on the eve of its date, but two days later one of the strike’s targets, 38-hospital Catholic Healthcare West, San Francisco, announced it had completed contract negotiations with the California Nurses Association/National Nurses Organizing Committee, which had organized the strike.

The settlement included union representation on a systemwide pandemic-readiness committee, as well as 20% wage increases for workers over four years. “So you don’t need to look too far to see what was probably going on there,” said Gail Blanchard-Saiger, vice president of labor and employment for the California Hospital Association, during a Nov. 2 presentation at the annual meeting of the American Society for Healthcare Human Resources Administration in Chicago.

Meanwhile, other large healthcare unions have taken the opposite tack, filing lawsuits that accuse hospitals of becoming overly zealous in trying to prevent the spread of flu viruses by mandating all direct-care workers receive flu vaccines or be forced to wear protective masks and “scarlet letter” stickers denoting their lack of vaccination. More broadly, unions are working more cooperatively across the country (See story, p. 24).

In a legal battle pitting the nation’s largest healthcare union against the country’s biggest hospital owner, the Service Employees International Union has filed federal lawsuits against seven hospitals in Northern California and Nevada to block implementation of such a policy at the HCA-owned facilities in those areas. A judge’s decision in the California hospital cases was pending at deadline.

Union officials maintain that while they support vaccination and disease-prevention efforts, mandating every employee to get a vaccination violates workers’ rights and ignores their ability to monitor their own health responsibly. Management officials say they have a right and a duty to safeguard their workplaces, and that failing to do so could expose them to malpractice liability and hurt their quality measures.

The cases also present awkward positions for both sides. On one hand, the SEIU, which throughout the healthcare reform debate has characterized itself as a leading advocate for patient safety, finds itself arguing in favor of a legal stance that could decrease the number of people who receive a vaccine known to lower disease transmission by 70% to 90%.

But HCA’s attorneys, meanwhile, have to argue in court that their policy of forcing workers to wear surgical masks is intended to prevent the spread of the flu—rather than to publicly embarrass unvaccinated workers into compliance—despite findings by the Centers for Disease Control and Prevention and the Institute of Medicine that only fitted N95 masks can filter out more than 95% of H1N1-relevant particles.

Similar legal battles in other locations have yielded mixed results. An arbitrator sided with union protesters in a similar dispute at 670-bed University of Iowa Hospitals and Clinics in Iowa City, ruling in a binding decision that hospital officials there could not unilaterally order workers with SEIU and the AFL-CIO to get flu shots. And New York state last month backed off a flu-shot mandate in the face of union lawsuits and short supplies of vaccines.

However, the three-hospital MultiCare Health System, Tacoma, Wash., successfully fought off a similar union request for temporary restraining order in federal court in October from the Washington State Nurses Association. And HCA won the restraining order battle in Nevada that SEIU launched almost identically to the Northern California lawsuit.

Regardless of who prevails in those debates, legal experts say union officials are proving their media savvy by controlling the issue in the public eye and then leveraging that power to create a new bargaining issue: the workers’ seat at the pandemic prevention table.

Management labor lawyer Bruce Stickler of Drinker Biddle & Reath said the CNA settlement with CHW proved the point. “They really are doing the things that I think unions should do if they want ... to be able to pressure organizations to tackle the issues that they stand on,” Stickler said. “You’ve got to tip your hat to them. Whether it’s right or not, it’s a done deal.”

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