New York Health Care Workers Object to Mandatory Flu Vaccination

The New York State Department of Health has made flu shots mandatory for health care providers with patient contact.  This rule covers both seasonal and H1N1 vaccinations. Thus far, New York is the only state to make the flu shots mandatory. (To view the New York State Department of Health website, click here.) Exceptions are available only where “medically contraindicated.” We have heard many objections from personnel subject to the mandate who believe the H1N1 vaccine is dangerous, and do not want to take it. At least two lawsuits have been filed by health care workers seeking to overturn this requirement. Interestingly, the suits appear directed at the FDA and whether its own guidelines were followed in approving the H1N1 vaccine, rather than the legality of the guidelines themselves.

A 1905 U.S. Supreme Court decision, Jacobson v. Massachusetts, 197 U.S. 11 (1905), remains viable today for the proposition that personal liberty guaranteed by the 14th Amendment is not infringed by state law authorizing compulsory vaccination deemed necessary for public health or safety. In 1905, the threat was smallpox. Today it is a wide and quick-spreading strain of the flu which the New York State Department of Health is attempting to contain through vaccination. Thus, health care employees who object to the Department of Health mandate may have to choose between keeping their job and taking a shot of vaccine they believe is risky — or looking for work in a state other than New York.