Many fire/EMS department administrators have implemented policies requiring employees to use their own insurance to pay for vaccines. This is being touted as a cost saving measure, but is it consistent with U.S. Occupational Safety and Health Administration (OSHA) regulations?
This is a question that has arisen more frequently recently. The short answer is no. The long answer with the explanation can be found in the OSHA Compliance Directive CPL 02-02.069, the companion document to the OSHA Bloodborne Pathogens Standard, 29 CFR 1910.1030.
Paragraph (f)(1)(ii)(A) of the Compliance Directive states the following:
“The term ‘no cost to the employee’ means, among other things, no ‘out of pocket’ expense to the employee. The employer may not permit the employee to use his/her healthcare insurance to pay for the series unless the employer pays all of the cost of the health insurance and unless there is no cost to the employee in the form of deductibles, copayments, or other expenses. Even partial employee contribution to the insurance premium means the employee could be affected by a rise in the total premium caused by insurance company reaction to widespread hepatitis B vaccinations and is therefore unacceptable.
Likewise, any use of a spouse or other family member’s insurance plan to provide vaccination would not be considered ‘at no cost’ to the employee. The employer may not institute a program in which the employee pays the original cost of the vaccine and is reimbursed by the employer if she/he remains employed for a specified period of time.
An ‘amortization contract’ which requires employees to reimburse the employer for the cost of the vaccination should they leave his/her employ prior to a specified period of time is similarly prohibited. A waiver of liability for any harm caused by the vaccine is also prohibited. Paragraph(f)(1)(ii)(B). The term ‘reasonable time and place’ requires the medical procedures and evaluations to be convenient to the employee. They must normally be offered during employees’ scheduled work hours. If participation requires travel away from the worksite, the employer must bear the cost.”1
This language does not apply only to the Hepatitis B vaccine that is referenced specifically in the Bloodborne Pathogens Standard. OSHA is also enforcing the Centers for Disease Control (CDC) Guidelines on Immunization of Healthcare Personnel using its authority under General Duty Clause, Section 5 (a), of the 1970 Occupational Safety and Health Act for its enforcement.
The General Duty Clause Section 5 (a) states that employers must protect employees from recognized hazards that are causing or are likely to cause death or serious physical harm, and OSHA has the legal authority under this provision to issue citations and fines even when there is no regulation that has been violated.2
Are EMS personnel covered as healthcare personnel under the CDC guidelines? This question is answered in the CDC Guidelines for Immunization of Healthcare Personnel on page two, which gives a listing of disciplines that fall under these guidelines:
“HCP might include (but are not limited to) physicians, nurses, nursing assistants, therapists, technicians, emergency medical service personnel, dental personnel, pharmacists, laboratory personnel, autopsy personnel, students and trainees.”
OSHA also clearly includes EMS personnel in its definition of healthcare personnel in the Bloodborne Pathogens Standard.
The vaccines that are currently required to be offered to all unprotected healthcare personnel include: Hepatitis B vaccine; Measles, Mumps, Rubella vaccine; chickenpox vaccine; a booster for Tetanus, diphtheria and pertussis; seasonal flu vaccine; COVID-19 vaccine; and TB testing.3
Given that these vaccines and TB testing are to be offered to all unprotected personnel, the OSHA Compliance Directive language quoted above would apply to these vaccines as well as hepatitis B vaccine.
Currently, all new hire personnel are to bring their childhood vaccine records with them at the time of hire. These are to be reviewed to determine if the individual is in need of a protective vaccine.
If not protected from a vaccine preventable disease, the department is obligated to offer the vaccine. The same is true for existing EMS personnel; they are to obtain their vaccine records and those are to be reviewed to identify each person’s status. Personnel in need of vaccine may decline the vaccine but must sign a declination form.
Declination forms are required by OSHA. It is important to note, however, that declination forms do not remove any employee rights. They are an important document to show that the offer was made to the unprotected employee by the employer (the department). Declination forms are then placed into each employee’s medical record.1,3,4
Offering vaccines to unprotected personnel is cost effective. The cost of vaccine is far less than the cost of post exposure medical follow up and possible replacement of personnel. This is easily demonstrated by conducting cost/benefit analysis.
It should also be noted that EMS training programs are now requiring that students have their vaccines prior to starting the training program so most persons will be coming into departments already vaccinated.
Thus, the cost of vaccines for new personnel will be low. Perhaps the greatest cost will be seasonal flu vaccine for personnel, but that cost can be offset by fewer personnel off with the flu and replacement costs.
References
- CPL 02-02.069 – Compliance Directive -Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens, U.S. Department of Labor, November 27, 2001.
- OSHAct of 1970, Duties, Section 5, (A).
- Immunization of Health-care Personnel, Recommendations of the Advisory Committee on Immunization Practices (ACIP), Centers for Disease Control & Prevention, Morbidity and Mortality Weekly Report Recommendations and Reports / Vol. 60 / No. 7 November 25, 2011.
- NFPA 1581 -Standard on Fire Department on Infection Control Program, 2022, Edition.
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