Effect Measure
April 3, 2008

Editor’s Note: Surprise, surprise. Health care workers are owned by the state, that is to say they are slaves, according to the Model State Emergency Health Powers Act. In the event of a pandemic, they can be ordered to “work,” that is to say risk infection.

If a worker refused to report for work because it was a demonstrably dangerous workplace they would be within their rights, with a few exceptions. One of the exceptions in some states seems to be health care workers (HCW) who refuse to work during a pandemic. A HCW, like any other worker, might not report for work for a variety of reasons: fear for their own safety, fear for the safety of their families should they bring home an infectious disease like influenza, need to care for their family if one is sick or has not caretaker (say, because the schools are closed). In at least two states, Maryland and South Carolina, those HCWs can be ordered to work. The two states in question took as their starting point a Model State Emergency Health Powers Act (MSEHPA), which, if enacted at the State or Federal level, would provide health authorities power to order HCWs "to assist in the performance of vaccination, treatment, examination or testing of any individual as a condition of licensure, authorization, or the ability to continue to function as a health care provider in this State." Wnile the Model Law has been subject of serious criticism in the bioethics and health law literature (see George J. Annas. "Terrorism and Human Rights" In In the Wake of Terror: Medicine and Morality in a Time of Crisis. Jonathan D. Moreno, editor. Basic Bioethics Series. Cambridge, Massachusetts: The MIT Press, 2003), the Maryland law goes beyond MSEHPA by providing fines or jail if a HCW disobeys a direct order to report for work. A thoughtful Commentary in the Journal of the American Medical Association by Coleman and Reis (Seton Hall Law School and affiliations with WHO) examines the issues and makes the case that these laws or model laws are significantly different than "laws and penalties for failing to fulfill voluntarily assumed employment or contractual obligations":

An HCP [Health Care Professional] who affirmatively agrees to treat patients leads hospitals and patients to rely on his or her presence and, as a result, to refrain from making alternative arrangements. If the HCP fails to follow through on the commitment to treat, those individuals and institutions that have relied on it will be worse off than if the promise had never been made. By contrast, laws that penalize HCPs for disobeying public health officials’ orders to work, regardless of the HCP’s employment or contractual responsibilities, cannot be justified as mechanisms for enforcing prior commitments. The fact that an individual is qualified to treat patients does not necessarily mean that he or she has promised to do so. (Coleman and Reis, JAMA)

Coleman and Reis discuss a variety of rationales for penalties against HCW refusals and conclude none are persuasive. They also point out that the ethical (not legal) obligation to help those in need if one has the skills to do so possibly conflicts with obligations to other patients and to the HCW’s family. They are of the opinion that penalties for HCW who refuse to report for duty are unjustified.

Laws or no laws, we know it will happen in a pandemic. Surveys suggest a significant proportion of HCWs would not report for work. But these surveys are done before the event and present hypotheticals. It is historical experience that in emergencies ordinary people rise to the occasion and do extraordinary things. This was true of HCWs in Hong Kong and Canada during the SARS outbreak and will, I have no doubt, be true if and when there is a catastrophic influenza pandemic.

As a physician I can’t predict what I would do. I hope I would act honorably and effectively in a way compatible with my sense of professionalism and my desire to help others. In truth, no one knows how they will act or for what reasons. Two things I feel quite confident about, however. One is that my actions won’t be dictated by a law of doubtful ethical standing. The other is that however I act, there will be many others who will rise to the occasion. That’s the way it has always been.

In the meantime health care institutions can maximize the incentives for any critical worker to report to work in a pandemic by providing adequate social service support for families, adequate facilities and resources, including workplace protection and personal protective equipment for HCWs, and protection of brave volunteers from liability.

Not least, we can talk encouragingly and positively about how we are all bound together as a community and owe a duty to each other. You don’t promote that idea by threatening people with sanctions.

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