Updated, 4:21 p.m. | A judge on Friday morning halted enforcement of a New York State directive requiring that all health care workers be vaccinated for the seasonal flu and swine flu.
The temporary restraining order by the judge, Thomas J. McNamara, an acting justice of the State Supreme Court in Albany, comes amid a growing debate about the flu vaccine. On Friday afternoon, the State Department of Health vowed to fight the restraining order, saying that the authorities "have clear legal authority" to require vaccinations, and noted that state courts had upheld mandatory vaccinations of health care workers against rubella and tuberculosis. Justice McNamara scheduled a hearing for Oct. 30 on the three cases before him, involving the flu vaccine.
The state health commissioner, Dr. Richard F. Daines, through the State Hospital Review and Planning Council, issued a regulation on Aug. 13 ordering health care workers to be vaccinated by Nov. 30 or face fines.
Dr. Daines later explained the reasoning behind the vaccine, saying in a statement on Sept. 24:
Questions about safety and claims of personal preference are understandable. Given the outstanding efficacy and safety record of approved influenza vaccines, our overriding concern then, as health care workers, should be the interests of our patients, not our own sensibilities about mandates. On this, the facts are very clear: the welfare of patients is, without any doubt, best served by the very high rates of staff immunity that can only be achieved with mandatory influenza vaccination – not the 40-50 percent rates of staff immunization historically achieved with even the most vigorous of voluntary programs. Under voluntary standards, institutional outbreaks occur every flu season. Medical literature convincingly demonstrates that high levels of staff immunity confer protection on those patients who cannot be or have not been effectively vaccinated themselves, while also allowing the institution to remain more fully staffed.
Terence L. Kindlon, a lawyer for three nurses who sued the state, asserting that the order violated their civil rights, said the judge's ruling was a victory. New York was the only state in the country to mandate vaccinations for health care workers, he said.
The nurses — Lorna Patterson, Kathryn Dupuis and Stephanie Goertz — work in the emergency room at Albany Medical Center, a regional trauma unit.
"These are not libertarians, they are not lefties, they are not right-wing lunatics," Mr. Kindlon said of his clients in a phone interview on Friday. "They are health care professionals, and they think the vaccination is not going to be good for them. They have no confidence that either the seasonal flu vaccine or H1N1 vaccine is going to do any good for them."
Justice McNamara consolidated the nurses' suit with two other lawsuits, brought by the New York State Public Employees Federation and the New York State United Teachers Union, which also challenged the regulation.
Mr. Kindlon said of his clients: "They basically were being administratively ambushed. This regulation came out of the Health Department during the dog days of August. People weren't aware of it until September. Then they were suddenly advised that the drop-dead rate for receiving the vaccination from the state was Nov. 30."
