H1N1 Immunization: Is It Your Right to Refuse or a Public Safety Mandate?

BY John K. Murphy, JD, MS, PA-C, EFO, FACC
Author’s note: This article teeters at the intersection of law and medicine and will discuss both points.
We have been informed that there is a global H1N1 Swine Flu pandemic emerging, and the United States and other countries are gearing up for a mass immunization program. Many individuals who are in the “preferred” group of health care providers scheduled to receive this immunization are firefighters. As a basis related to the scope of this problem, some terminology is in order. A pandemic is an epidemic of infectious disease that spreads through human populations across a large region—for example, a continent or even worldwide. An epidemic occurs when new cases of a certain disease—in a given human population and during a given period—substantially exceed what is “expected,” based on recent experience. H1N1 is classified as a pandemic by the Centers for Disease Control and Prevention and other worldwide health agencies.
There has been resistance from firefighters as well as other health care providers receiving the first wave of immunization protection. This article is meant to cut through the controversy so firefighters can make the right choice for themselves, their families, and their patients.
With a call volume at about 70 percent EMS and the remainder comprised of other emergency services, including fire calls, your primary mission today is health care delivery. Primarily, you see sick people. Your contact with sick people puts you at risk for contracting the illness and spreading it. You live more than 24 hours a day in close quarters with other firefighters. You see many other people during the many calls you run throughout your shift. Then you go home to your family and friends. Flu viruses are hardy and quick to travel through closed populations such as fire stations. The following lists groups that are considered high-risk. When you read this list, think about the many people who you have contact with that fall within one of these groups.

Groups that are considered high-risk are as follows:1
•        Children younger than five years old.
•        People ages 65 and older.
•        Children and adolescents (younger than 18 years) who are receiving long-term aspirin therapy and who might be at risk for experiencing Reye syndrome after influenza virus infection.
•        Pregnant women.
•        Adults and children who have asthma, chronic pulmonary, cardiovascular, hepatic, hematological, neurologic, neuromuscular, or metabolic disorders such as diabetes.
•        Adults and children who have immunosuppression (including immunosuppression caused by medications or by HIV).
•        Residents of nursing homes and other chronic-care facilities.
Here is a little perspective to understand the current problem: The last time that state public health officials instituted widespread isolation and quarantine of United States citizens was during the 1918 Spanish influenza pandemic. The 1918 pandemic reportedly infected an estimated 20 to 30 percent of the world’s population with a 2.5 percent mortality rate. It has been estimated that between 40 and 100 million people died from complications, including about 500,000 Americans. Less serious influenza pandemics, like those that occurred in 1957 and 1968, resulted in a mortality rate of about 0.1 percent. In 1957, the Asian Flu reportedly contributed to the deaths of about 68,000 Americans. In 1968, complications from the Hong Kong Flu reportedly killed about 34,000 Americans. 2
We are not at the point of a declared public health emergency today, but tomorrow we may be. Several states have already acted and legislatively enacted rules that clarify and confirm the right of the Public Health Department and the governor to declare a public health emergency rather quickly.
Historically, the preservation of the public’s health has been the responsibility of state and local governments, and the authority to enact laws relevant to the protection of the public’s health derives from the state’s general police powers. 3   With respect to the preservation of the public health in cases of communicable disease outbreaks, these powers may include the institution of quarantine or the enactment of mandatory vaccination laws. 4 
Mandatory vaccination laws were first enacted in the early 19th century, with Massachusetts enacting the first such law in 1809 dealing with a smallpox epidemic. 5 In upholding the law, the court noted that “the police power of a State must be held to embrace; at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” 6 The court added that such laws were within the full discretion of the state, and that federal powers with respect to such laws extended only to ensure that the state laws did not “contravene the Constitution of the United States or infringe any right granted or secured by that instrument.”7
Under the Public Health Service Act, the Secretary of Health and Human Services has the authority to make and enforce regulations necessary “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” 8
Public health laws in the United States are primarily state laws with the exception of laws granting the U.S. President and Secretary of Health and Human Services the legal authority to use law enforcement to (1) prevent individuals with certain communicable diseases from entering the country; and (2) prevent the spread of certain communicable diseases between the states. State governors and public health officials have the legal authority to use police powers to prevent the spread of communicable diseases within the state, including isolating and quarantining citizens. By Executive Order (EO) of the President of the United States, isolation and quarantine of individuals is authorized to prevent transmission of cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, Severe Acute Respiratory Syndrome (SARS), and influenzas that can cause a pandemic.

State public health laws that involve quarantine and vaccine use are implemented whenever your state governor declares a public health emergency. The legal right of states to quarantine citizens to prevent the spread of certain communicable infectious diseases dates back to before the American Revolution. The legal authority for states to require Americans to use vaccines during nonemergencies was affirmed by the U.S. Supreme Court in 1905 (Jacobsen vs. Massachusetts) in a controversial decision involving smallpox vaccine. That high court decision made by judges at the turn of the 20th century has been criticized in recent decades for failing to acknowledge biodiversity and the fact that vaccines have the inherent ability to cause serious injury or death, with some citizens at greater risk than others and few ways for doctors and health officials to reliably identify those at high risk for suffering harm.
Current federal and state public health emergency laws give broad police powers to federal and state government officials to work together to detain and quarantine you and/or require you to use vaccines IF they elect to exercise that legal authority. It is important to check the new public health laws that have been enacted in your state since September 11, 2001.
Some states chose to amend their state public health laws after April 26, 2009, when officials with the Departments of Health and Homeland Security declared a national public health pandemic influenza emergency. You can do your own research on the Internet to learn more about the state laws which govern you and your family. You can also check the Centers for Disease Control and Prevention (CDC) Web site at  http://www.cdc.gov/H1N1FLU/ for the “2009 H1N1 Flu Legal Preparedness” document or contact your local public health entity and ask for a copy of your state pandemic influenza public health emergency law.
Immunization may not be an issue of personal choice but one of public health. There is a lot of chatter on the news and Internet about the safety of the vaccine, and it is incumbent on you to make the right choice for you; your family; your fellow firefighters; and, above all, your patients.
Remember, this is not the only flu that is going around this year. There are other flu shots for the seasonal flu that can be found on the CDC Web site. 9 
Whether you accept or decline the H1N1 Swine Flu immunization, remember these simple precautions that are the cornerstone of infection control: 10

1. Wash hands frequently with soap and water. If soap and water are not available, use an alcohol-based hand rub.
2. Cover your mouth and nose with a tissue when coughing or sneezing.
3. Avoid touching your eyes, nose, and mouth.
4. If you are sick with an influenza-like illness (ILI) (fever plus at least cough or sore throat and possibly other symptoms like runny nose, body aches, headaches, chills, fatigue, vomiting, and diarrhea), stay home and keep away from others as much as possible. Avoid travel for at least 24 hours after the fever is gone except to get medical care or for other necessities. (The fever should be gone without the use of fever-reducing medicine.)
5. On EMS responses, wear an n-95 mask or another type of barrier mask.
6. Drink plenty of fluids, especially water.
7. Get adequate sleep.

This should be a health issue, not a legal issue. There are legal precedents to mandate immunizations as noted above. This immunization issue will be tested in a court of law again, and there are already injunctions preventing this immunization mandate from taking effect originating from certain health care employee groups. Injunctions have a short shelf-life, and these issues will be heard in courts of law very soon. The courts will look to case law created in 1905; if that decision is upheld and not overturned, then immunizations to H1N1 can be mandated when a public health care emergency is declared.

It is up to you to become educated as to the cause and effect of this current pandemic and seasonal flu and make the right choice—if not for you, then for your family and your patients.

1. cdc.gov
2. nvic.org.
3. See The People v. Robertson, 134 N.E. 815, 817 (1922).
4. See CRS Report RL31333, Federal and State Responses to Biological Attacks: Isolation and Quarantine Authority.
5.  Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint, p. 181 and n. 27.
6. Jacobson v. Massachusetts, 197 U.S. 11 (1905).
7. Jacobson v. Massachusetts , 197 U.S. 11 (1905) at 31.
8. 42 U.S.C. 264. Originally, the statute conferred this authority on the Surgeon General; however, pursuant to Reorganization Plan No. 3 of 1966, all statutory powers and functions of the Surgeon General were transferred to the Secretary.
9. cdc.gov

10. cdc.gov 
JOHN K. MURPHY, JD, MS, PA-C, EFO, FACC retired as a Deputy Fire Chief after 32 years of service; is a practicing attorney, whose focus is on employment practices liability, training safety, employment policy and practices, forensic evaluation on fire operations, internal investigations and consulting on risk management for private and public entities. His past fire experience has been as a Navy Corpsman, a paramedic firefighter for more than 20 years and a chief fire officer with responsibilities as the Chief of Training, Chief of Operations and a promoter and facilitator of health-care and safety issues in the fire service.  He is a licensed Physicians Assistant and Fellow, American College of Clinicians practicing since 1977 with a focus in family practice and emergency care. He is a frequent speaker on legal and medical issues at local, state and national fire service conferences.

Subjects: Swine flu, H1N1 virus, firefighters/EMTs/paramedics and immunization, health, public safety, fire service law and legal issues

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