State Health Commissioner Suspends Mandatory Flu Vaccination Requirement for Health Care Workers

October 26, 2009

By: Sanjeeve K. DeSoyza

On October 22, 2009, New York State Commissioner of Health Richard F. Daines, M.D., suspended the mandatory influenza immunization requirement for New York State health care workers due to a shortage of available vaccines. In a letter dated October 23, 2009, the Commissioner wrote that the current emergency regulations requiring vaccination would expire on November 11, 2009, and that no new emergency regulations would be promulgated. Rather, the Department will propose a permanent regulation requiring vaccination of health care personnel in the facilities covered by the emergency regulation and post the draft for a period of public comment. The Department of Health now stresses that the limited vaccine supply should be prioritized for patients and those most at risk (pregnant women, and children and young people between the ages of 6 months and 24 years).

The emergency regulations went into effect on August 13, 2009, and required all covered health care facilities in New York State to ensure that health care personnel having direct patient contact were immunized against both seasonal influenza as well as the H1N1 virus. The mandate applied to personnel in hospitals, diagnostic and treatment centers, home care services agencies, certified home health agencies, licensed home care services agencies, long term home health programs, and hospice programs. The regulations required that personnel commencing employment on or after November 30, 2009, be immunized and that existing personnel receive annual vaccinations before November 30 of each year. The only health care personnel exempt from the vaccination requirement were those who provided documentation from a licensed physician or certified nurse practitioner certifying that vaccination would be detrimental to the health of the individual.

The Commissioner’s most recent action was permitted by the emergency regulations, which state that if “the commissioner determines the vaccine supplies are not adequate given the numbers of personnel to be vaccinated or vaccine(s) are not reasonably available, the commissioner may suspend the requirements(s) to vaccinate and/or change the annual deadline for such vaccinations.” This past summer, both the federal government and the Centers for Disease Control and Prevention (CDC) estimated that upwards of 120 to 200 million doses of H1N1 vaccine would be available nationwide by the end of November. After receiving reports from the CDC that New York would in fact only receive 23 percent of its anticipated H1N1 vaccine supply, and that the amount of seasonal flu vaccine available to the State would also fall short of the increased demand, the Commissioner of Health suspended the mandate.

The suspension comes just six days after three nurses filed suit in Albany County Supreme Court alleging that the mandatory vaccination requirement violates the civil rights of health care workers. After consolidating the nurses’ suit with two other lawsuits, the Court issued a temporary restraining order on the mandate and scheduled further hearings to take place on October 30.

Nicholas Fusco assisted in the preparation of this post.