PEF wins temporary restraining order
for mandated vaccines, sues Health Dept.
By DEBORAH A. MILES
PEF made history October 16 when Judge Thomas McNamara in Albany County Supreme Court signed a temporary restraining order halting the state’s mandated vaccinations of certain health care workers for the seasonal and H1N1 flu viruses.

The temporary restraining order was issued as part of PEF’s lawsuit against New York state to nullify and void the emergency regulation imposed by state Health Commissioner Richard Daines. The regulation required health care workers to be vaccinated by November 30 or face possible disciplinary action, including termination.

“This is a big step in the right direction,” said PEF President Ken Brynien. “Commissioner Daines acted in excess of his jurisdiction. This regulation is an absolute violation of the separation of powers as it is an unconstitutional exercise of the Legislature’s authority. If, and only if, a mandate was necessary, it should have come from the Legislature, not an administrator.”

The lawsuit names Daines, the state Health Department, State Hospital Review and Planning Council, Gov. David Paterson, and the state of New York as defendants.

PEF is encouraging its members to be vaccinated against the flu, but is opposed to the emergency regulation mandating the vaccine as a condition of employment.

Long time plan
PEF joined other labor unions and organizations at a jam-packed state Assembly hearing in Manhattan October 13, prompted by the compulsory flu vaccinations.

Many were stunned with a statement made by Dr. Guthrie Birkhead, deputy commissioner of the state Health Department.

“The deputy commissioner told the heads of four Assembly committees the plan to mandate health care workers to get vaccinated started two years ago,” said PEF Region 12 Coordinator Doris Dodson, PEF Nurses Committee chair.

“The Health Department didn’t like the statistic that 30 to 40 percent of health care workers were volunteering for the vaccines. They used the swine flu to justify issuing emergency regulations,” Dodson said. “Where is the emergency? This mandate is a violation of civil liberties. The Health Department should have invited unions representing health care workers and professional health organizations to the table to work together to increase vaccination rates.”

Dodson testified at the hearing held by: Assembly Members Richard Gottfried of Manhattan, Health Committee chair; Catherine Nolan of Queens, Education Committee chair; Deborah Glick of Manhattan, Higher Education Committee chair; and Rory Lancman of Queens, who heads the subcommittee on workplace safety.

Dodson told the Assembly leaders PEF wants the state to adopt the Centers for Disease Control and Prevention recommendations such as providing health care workers with the N-95 masks, which are more protective than surgical masks.

“PEF is concerned about the current H1N1 pandemic. But the impact on state agency health care has been minimal. The number of staff and patients infected has been low, absenteeism has not been notably impacted, and demands for increased patient care have not materialized. However, PEF is very concerned about the lack of preparedness at the state, county and local levels in the event a more virulent form of the virus emerges,” Dodson testified.

More problems
PEF Region 11 Coordinator Jemma Marie-Hanson, a labor-delivery nurse who works at Downstate Medical Center in Brooklyn, told the Assembly leaders she has never received a flu shot or had the flu.

“The commissioner’s mandate is causing more problems,” Hanson said. “It is creating a work environment that fosters hostility rather than teamwork and quality patient care. Some people believe in taking the vaccinations, others don’t. It should be a matter of choice. The mandate also confuses New Yorkers when they hear some nurses are opposed.”

PEF member and Stony Brook nurse Colleen Heinze said nurses were concerned with possible vaccine side effects, especially in the new H1N1 vaccine. “This is something we do not take lightly. We feel our rights have been violated.”

Dodson, an RN, said PEF nurses are concerned because the vaccination was fast-tracked and without reports on its side effects and possible adverse reactions.

“Nurses have questions about thimerosal, a mercury derivative in the vaccine. We feel the vaccination is an invasive procedure. We should have the right to decide on what we introduce into our own bodies.

“History has shown taking this police-state attitude does not work. Our health care workers are educated. You have to meet them on their own level of intelligence,” Dodson added.

Gottfried said he supports the mandate, but admitted the Health Department should have included health care workers in the decision-making.

PEF was back in court October 30 with further arguments and is expecting a final decision in early November. For updates, visit the PEF Web site and Information Line.