By ANEMONA HARTOCOLLIS and SEWELL CHAN
A New York State judge on Friday suspended a health regulation that would compel hundreds of thousands of health care workers and hospital volunteers to be vaccinated for seasonal and swine flu.
Justice Thomas J. McNamara, of State Supreme Court in Albany, issued the temporary restraining order in response to three lawsuits contending that the state’s health commissioner, Dr. Richard F. Daines, had overstepped his authority in requiring vaccinations.
The litigation in Albany and a parallel case in New York City reflect an undercurrent of public anxiety about the swine flu vaccine in particular because of the close attention it has received, despite the assurances of state and federal health officials that it is as safe as any other vaccine.
Terence L. Kindlon, a lawyer for three nurses who filed one of the suits, said that in a hearing Friday, lawyers for the plaintiffs argued that it was up to the Legislature to make decisions that would have such a broad public impact. Although Dr. Daines had invoked emergency powers to promulgate the regulation, Mr. Kindlon said there was little evidence that swine flu, which has been relatively mild in most people, was an emergency.
“These three women are not saying, ‘We don’t want to be vaccinated,’ ” Mr. Kindlon said. “They’re saying: ‘We don’t need this vaccination. We don’t think, for any number of reasons, it’s effective or necessary. It might be harmful to us. It hasn’t been adequately tested.’ ”
Claudia Hutton, a spokeswoman for Dr. Daines, said Friday that the commissioner intended to “vigorously defend this lawsuit on its merits,” and was confident that the regulation would be upheld.
The State Health Department said it imposed the rule primarily to protect hospital patients, whose immune systems are often weakened. Ms. Hutton said that case law indicated that the commissioner had clear legal authority to put forth such regulations. In 1990, she said, a state court upheld regulations requiring mandatory rubella vaccinations and annual tuberculosis testing for health care workers, ruling that the regulations were tailored to make hospitals safe places to get well.
Justice McNamara’s restraining order did not explain his reasoning. But he scheduled an Oct. 30 hearing to discuss whether the suspension should be made permanent. Besides the nurses, who work in the emergency room at Albany Medical Center, challenges were filed by the New York State Public Employees Federation, which represents about 5,000 workers covered by the regulation, and the New York State United Teachers, which represents some health care workers who would be affected.
Dr. Daines, through the state hospital review and planning council, issued the regulation on Aug. 13 ordering health care workers and volunteers in hospitals, home health care agencies and hospice care to be vaccinated by Nov. 30.
Hospitals and unions have interpreted the regulation as meaning that workers who do not comply may be fired, even though it does not explicitly say so. “The commissioner is being a little bit cute in saying it’s up to the facilities in deciding how they’re going to direct compliance,” said William P. Seamon, general counsel for the Public Employees Federation.
“Individual facilities are all telling employees that failure to comply will result in discipline and even termination,” Mr. Seamon continued.
The federation said it encouraged its members to be vaccinated but opposed making it a condition of employment. “We have members that are single parents, they cannot lose their job. Members that are pregnant, that are fearful of the vaccine,” Mr. Seamon said.
Hospital officials said Friday that they would continue to offer to their employees both seasonal and swine flu vaccines as they became available, and a hospital trade group, the Greater New York Hospitals Association, issued a statement supporting the mandatory vaccinations.
“While vaccine distribution delays have made the vaccination deadlines a challenge, we believe the regulation is both within the Health Department’s authority and in the best interests of patients, workers and their families,” said Susan Waltman, general counsel for the association.
Patricia Finn, a lawyer for Suzanne Field, a Dutchess County nurse who has filed a lawsuit in State Supreme Court in Manhattan challenging the mandatory vaccinations, said on Friday that her case would proceed despite the Albany restraining order. The judge in her case declined to sign a restraining order but scheduled a hearing for next week.
“We’re absolutely thrilled about it,” Ms. Finn said of the Albany ruling. “I’m very pleased that the whole process has been slowed down. That’s what we’re so concerned about, the process of vaccinating. It’s not like getting your teeth cleaned; it’s pretty serious. It shouldn’t be taken lightly.”
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