DECISION AND ORDER
This request for assistance, concerning the requirement that bargaining unit employees maintain current immunizations and vaccinations while employed at the Brooke Army Medical Center (BAMC), was filed by the Department of Defense, Brooke Army Medical Center, Fort Sam Houston, Houston, Texas (Agency or Management).
The Agency provides safe, quality care to military service members, their families, veterans and civilian emergency patients. The American Federation of Government Employees, Local 1004 (Union) represents just over 2000 bargaining unit employees in non-professional positions. Approximately 167 positions, occupied by approximately 693 bargaining unit employees (or 35% of the bargaining unit) are impacted by the change in this policy. The parties are governed by a national collective bargaining agreement (CBA) that expired in September 2019.
BACKGROUND, BARGAINING AND PROCEDURAL HISTORY
In June 2018, the Agency submitted notification to the Union regarding the Agency’s desire to change the immunization and vaccination requirements for employees employed at the Brooke Army Medical Center (BAMC). The parties conducted negotiations, both in-person and via email. The parties originally filed this case jointly in May 2019, but having not pursued mediation services, withdrew the filing. In June 2019, the parties engaged with a Mediator from the Federal Mediation and Conciliation Services (FMCS). The parties were unable to resolve the matter with the Mediator. In July 2019, the Agency filed this request for FSIP assistance. The Panel asserted jurisdiction over the impasse concerning the requirement that all personnel in the medical center be subject to immunization (including influenza) requirements. The Panel ordered the parties to engage in written submission procedures, with an opportunity to submit rebuttals. Both parties provided written submissions and timely rebuttals.
Army Regulation – 2013
As background, the Army Regulation 40-562 (October 2013) established the Military Vaccination Program and the program requirements. Included with that regulation was an acknowledgement that bargaining unit employees would be exempt from the requirements consistent with their bargaining agreements. (Army Regulation 40-562, Section 2-6(c)). As such, the requirement has not historically applied to this bargaining unit under their CBA.
DHA Guidance - 2019
The Army regulation operates under the guidance and approval of the Defense Health Agency (DHA), a component of DoD. Annually, DHA issues procedural guidance on the Annual Influenza Vaccination Program (IVP), which is adopted and followed by each component of the DoD. The latest version of their annual memo is Interim Procedural Memorandum 19-006, 2019-2020 Seasonal Influenza Vaccination Program. Under the DHA memo, the immunization policy applies to:
All civilian healthcare personnel (HCP), as identified by the CDC, working in healthcare setting who have potential exposure to patients or to infectious materials; including body substances, contaminated medical supplies and equipment, contaminated environmental surfaces or contaminated air. HCPs include both persons who provide direct or indirect care to patients and those not directly involved in patient care, but potentially exposed to infectious agents that can be transmitted to and from other HCPs and patients.
DOD Instruction – 2019
The DoD Instruction 6205.02 (DoDI 6205.02) establishes the Department of Defense’s (DoD) uniform immunization policy for DOD personnel. The latest version of that Instruction was issued effective July 23, 2019. The latest version of the instruction reflects the cancellation of the functions of the former Military Vaccine Agency. Under the latest DoDI 6205.02, the Assistant Secretary for Health (ASH), through the Deputy Assistant Secretary of Defense (DASD) for Health Readiness Policy and Oversight (HRP&O), are authorized to work in collaboration with the Defense Health Agency (DHA) to develop guidance that reflects the mandatory immunization requirements.
The DoDI 6205.02 policy includes the requirement that all health-care personnel (HCP) working in a DoD medical treatment facility be required to receive annual season influenza immunization or obtain an exemption (i.e., medical or administrative). The instruction defines HCP as defined above by the 2019 DHA guidance. Specifically, in that DoD Instruction, unlike in the prior guidance, DoD civilian employees who are not HCPs, but who could be potentially exposed to infectious agents that can be transmitted to and from HCP and patients, are required to be immunized. (DoDI 6205.02, Section 1.2(d)).
BAMC Guidance – 2019
As a follow up to the revised DoDI policy, the Brooke Army Medical Center drafted its own guidance on the immunization requirements for employees working in BAMC; BAMC Memo 040-235. That memo is the subject of this negotiation impasse. Under that memo, ALL personnel categories, whether they are involved in direct (e.g., physician and nurse) or non-direct patient care (administrative and logistical), are subject to mandatory immunizations and vaccinations. That policy makes no distinction for the non-HCPs that are potentially exposed or not potentially exposed. It simply applies to all BAMC employees. Appendix D includes all impacted positions, which includes the bargaining unit impacted by this negotiation.
POSITIONS OF THE PARTIES
The Agency’s position is that the welfare of employees, patients, and visitors is best served by very high rates of staff immunization to early childhood diseases, potential occupational exposures, and evolving outbreaks. The Agency’s policy includes a process for exemptions on the basis of adverse medical reaction and requests for exemption on the basis of religious affiliation. The Agency’s policy also establishes non-DoD beneficiaries will not be charged for any required vaccine if received at BAMC.
The Agency argued that the Union provided no counter proposals during bargaining regarding the negative impact, other than to reiterate employees who are engaged in non-direct patient care should not be required to maintain proof of receiving immunizations/vaccinations. The Agency argued in its submission that the Union merely asserting that bargaining unit employees “do not want to take shots” does not constitute an appropriate arrangement to address adverse effects of the Agency exercising their rights under 5 U.S.C. 71 of the Statute. As background to the Agency’s argument, in its initial filing with the Panel, the Agency cited the management rights section of the Statute, Section 7106 (a)(1), which establishes the right of the Agency to determine internal security practices, including the policies and practices that are necessary to safeguard its personnel, physical property, or operations against internal and external risks. The Agency argued at that time that safeguarding the public from transmitting childhood diseases, preventing potential occupational exposures, and protection from evolving outbreaks falls within internal security practices. The Agency argued that eliminating and reducing the number of potential outbreaks that could adversely affect military preparedness and medical care is well within the Agency’s management right to determine its internal security practices.
During the investigation, the Agency was asked about their position that subjecting all BAMC personnel to the mandatory immunization policy is within its management rights – internal security. The FLRA has ruled on the negotiability of an agency’s mandatory vaccination program in AFGE, Local 1345 and Department of Army, Army Medical Department Agency, Army Dental Activity, Fort Carson, Colo, 64 FLRA 949 (June 30, 2010) (Ft. Carson). In Ft Carson, the agency implemented a policy requiring all civilian HCPs who had direct contact with patients to be immunized annually against influenza. The policy provided exceptions for those workers with documented medical or religious reasons for not wanting to be immunized. The agency in that case provided the same reasoning for wanting a mandatory program. The union was seeking exemptions from the program for personal reasons. The FLRA determined in Ft. Carson that the plan was targeted and specific, applying only to health care workers with patient responsibilities, and the union’s proposal affected management’s right to deal with health risks associated with the influenza virus. Therefore, in that case, it was determined that the Agency’s limited, mandatory policy was within management rights.
As the Agency in this case seemed to be making the same negotiability arguments that were made in Ft. Carson for why it was rejecting the Union’s proposal to exempt some employees that are not HCP, during the investigation, the Agency was asked to provide their position on the negotiability of the Union’s proposal in writing. The Agency then amended its position during the investigation and asserted that they believed that the matter is negotiable and properly before the Panel for resolution. In its written submission, the Agency continued to assert that the Commanding General is vested with the full authority and command to set a policy that encompasses all BAMC employees, as proposed by the Agency, and, therefore, the Panel should adopt the policy as written because it is the most effective in protecting employees, patients and visitors. The Agency did not go so far as to assert that the policy is non-negotiable because it is a management right to set this policy. However, in its rebuttal statement, the Agency once again asserted that the Union’s proposals restrict and preclude the Agency from exercising its right under 5 U.S.C. 7106. Although the Agency was the party to file the request for Panel’s assistance to resolve this matter, the Agency appeared to be flirting with making a management rights argument.
The Union proposed that the immunizations become a condition of employment only for Health Care Professionals (HCPs). The Union offered evidence of Agency findings that the immunization is not required for this bargaining unit (i.e., Email from Agency representative). The Agency argued that the evidence cannot be relied upon because the drafter of the email, an agency representative, didn’t explain in the email how she reached her conclusion. The Union also offered evidence of past practice of not requiring the immunizations for non-direct patient care employees under the DOD guidance.
The Union argued that the proposed policy change would negatively impact the non-HCP employees in such a way that experienced BAMC employees may be subject to termination after years of service. Specifically, in its rebuttal statement, the Union argued that the exemption provisions (both for religious reasons and for medical reasons) are unworkable because with ALL positions subject to the policy, there is no other position to reassign the exempt employee to, leaving no choice except to be terminated.
The lack of agreement is over the Union’s position that the bargaining unit employees, who are not HCPs and have no direct contact with patients, should be allowed to opt out of the program. The BAMC policy goes beyond the DOD or Army policy. The Union argued that the policy is overreaching (goes beyond that which is required by DOD or the Army) and could result in some employees losing their job. The Agency argued that the BAMC Commander has the management right to go beyond the DOD and Army policy. The Agency provided no authority to support that argument. Assuming the BAMC policy could go beyond the DOD or Army policies, this negotiation will determine if that extension is appropriate and agreeable for the BAMC facility.
The Agency presented evidence that maximizing immunization (“herd immunity”) would benefit the employees, the patients, and visitors, in general. However, neither party presented evidence to show the benefit of the immunization of non-direct patient care employees, particularly those who occupy positions that cannot potentially be exposed to an infectious agent that can be transmitted to and from other HCP and patients (the extent of the application of the DOD policy). In other words, both parties failed to make a substantive argument addressing the extension of the program, or not, beyond that which is provided for throughout the rest of DOD. The Union asked the Agency to provide evidence that the immunization requirement went through the proper procedures and approval established by OPM for substantiating a condition of employment. The Agency denied the Union’s information request. Without a demonstration of the need for or impact of extending the application of the DOD policy, the Panel has determined that the BAMC policy should be consistent with the intent and guidance provided under the DOD and Army policy.
The Union also expressed concern that in addition to the policy being overreaching, the exemptions (both medical and religious) may not be available in practice. That argument was unpersuasive. The Union presented no evidence that exemptions have been or will be improperly denied. The Agency acknowledges that their immunization policy must be flexible enough to provide for medical and religious exemptions, which it has provided. Both parties understand that improper denials of exemptions for medical or religious purposes could result in a grievance or an EEO complaint.
Pursuant to the authority vested in the Federal Service Impasses Panel under 5 U.S.C. §7119, the Panel hereby orders the parties to adopt the terms of the BAMC Memorandum No 040-235, with the following modification:
The policy will to apply to all HCP, including non-direct positions that can be potentially exposed to an infectious agent that can be transmitted to and from other HCP and patients or where the requirement has been established as is a condition of employment.
Mark A. Carter
November 14, 2019
• Union Submission and Rebuttal
• Agency Submission and Rebuttal
 CDC website - Healthcare workers include physicians, nurses, emergency medical personnel, dental professionals and students, medical and nursing students, laboratory technicians, pharmacists, hospital volunteers, and administrative staff.
See DHA-IPM 18-005 – August 14, 2018 – the list of HCP positions where immunization is required does not include the bargaining unit positions impacted in this negotiation. See DHA-IPM 19-006 – August 29, 2019 – which could apply to positions not directly involved in patient care, but only if potentially exposed to infectious agents that can be transmitted to and from HCP and patients; no list provided.