Arbitrator Orders HCA to Negotiate With SEIU Over Mandatory Flu Vaccination or Mask Policy

An arbitrator ordered Hospital Corporation of America (HCA) to bargain with SEIU Local 121RN and SEIU United Healthcare Workers over its 2009 mandatory policy that employees receive an H1N1 and seasonal flu inoculation or wear a surgical mask when working with patients.

This win represents a substantial victory for HCA workers as the ruling declares that even with a management rights clause in the contract, there are checks on management’s behavior. In our case, management must make decisions in ways which do not interfere with employee rights as spelled out in our contract. The arbitrator states that the employer should have bargained with the two Unions to balance safety and employee rights by tailoring the masking requirement to minimize employee discomfort, inconvenience and personal distress.

Specifically, the decision states that the Employer’s masking policy affected employee working conditions and was overbroad. The arbitrator found that:

The hospital’s unilateral implementation of a patient care policy that eliminates or fails to recognize that the requirements of progressive discipline be observed has a direct effect on job security, thus violating Local 121RN nurses’ collective bargaining agreement. This ruling hinged on the fact that HCA management originally required those who declined vaccination to sign a statement that read, in part:

“…Failure to wear a surgical mask during duty will result in disciplinary action, up to an including, termination.

I understand that if I decline the vaccine and refuse to wear a mask when required for duty, I am voluntarily resigning my position.”

HCA’s use of colored lanyards, marks, stickers and insignias on name badges to show which employees had or had not received the vaccines was discriminatory and any legitimate goal of the identification could be accomplished in more subtle ways that would minimize the stigmatizing and discriminatory aspects of the policy. HCA had also posted signs around the hospital explaining what the different colors meant, in effect, informing all patients and visitors whether or not an employee had a flu inoculation.


“I’m glad that this will be settled before the upcoming flu season. Everybody has the right to their personal beliefs and convictions and some people are allergic to the inoculations," says Nora Parkins, RN, Maternal/Child at Riverside Community Hospital. "They shouldn’t be pointed out and ridiculed. We have individual rights not just as employees. We are human. If I choose not to get that vaccine, that’s my personal decision.”

HCA will be allowed to keep the flu shot policy in place for the upcoming flu season contingent on the hospital negotiating with the two Unions on a mutually agreeable method of enforcement that follows both the Local 121RN and UHW contracts.

Click here to read the arbitrator's full report