Judge blocks mandatory vaccinations for N.Y.'s health care workers

By Cara Matthews
Press & Sun-Bulletin
Oct. 19, 2009

ALBANY -- A state Supreme Court judge granted a temporary restraining order Friday that blocks New York's mandate that health-care workers get the H1N1 and seasonal flu vaccinations.

The Public Employees Federation, representing professional, scientific and technical state workers, filed the request for the order Friday morning. About 5,000 of the 15,000 health-care workers it represents come under the emergency regulation that requires certain health-care workers to get the vaccines by Nov. 30 or face disciplinary action, which could include termination.

But the union also filed the request on behalf of a much larger number of health care workers - those throughout the state affected by the mandate, including nurses at local hospital and schools.

"These are people who are not government property," said Roy Russell, a registered nurse who worked at Binghamton School District until last month. Russell left his job because of a dispute over the mandate, he said. "We are professionals and we know the risks. We are governed by free will, not Big Brother telling us what we have to do."

Health care employees affected by the mandate, and the court decision Friday, spoke passionately about the issue.

"This is about our right to make a choice," PEF Nurses Committee Chairwoman Doris Dodson, a registered nurse, said. "The commissioner's regulation has done more to decrease participation in vaccination and created an unhealthy atmosphere in the workplace."

Health Care administrators, meanwhile, were urging employees to get vaccinated in the absence of a mandate.

Christina Boyd, a director of Community Relations for United Health Services, which operates hospitals in Johnson City and Binghamton, said this was the first time UHS mandated a vaccination. "We hold firm in our belief that it is the right thing to do, and we are strongly encouraging our employees to do it."

This is the first time the state has required that health-care workers get flu vaccinations, and New York is the only state mandating the shots. It's up to the health-care institutions where people work to decide what actions to take if employees don't comply.

A spokeswoman for the Health Department could not be reached for comment.

Until this year, seasonal flu shots were strongly urged but voluntary. After the H1N1 flu hit New York in the spring, the state Hospital Review and Planning Council voted to mandate vaccines for both seasonal and H1N1 flu. The rule applies to health-care workers in hospitals and clinics and those who work for home-care programs.

Union President Kenneth Brynien alleged that Dr. Richard Daines, state health commissioner, "acted in excess of his jurisdiction," and the regulation violates the state constitution because it should have come from the Legislature and not an administrator.

"There is no basis for an emergency regulation," Brynien said in a statement.

In addition to Daines, the state and the Health Department, Gov. David Paterson and the Hospital Review and Planning Council are named as defendants. The lawsuit was filed this morning in Albany.

Daines has said that years of making flu shots voluntary for health-care workers led to vaccination levels of between 30 percent and 50 percent. That's not enough to provide herd immunity, or protection to the remaining unvaccinated population, according to Daines.

PEF is the first professional group in the state that has filed a complaint against the regulation.