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The New York State Mandate

NYS Mandate

In late August 2009, New York became the only state to mandate influenza vaccination of health care workers. Adopted by the state Department of Health (DOH) as an emergency regulation (not a legislative enactment), the regulation required seasonal and H1N1 flu vaccination of a majority of health care personnel employed by or affiliated with hospitals. The regulation left it to individual hospitals to determine what to do with those refusing vaccination.

The Commissioner of Health argued that health care personnel should be vaccinated to maintain patient safety; stand behind the science of vaccinations; and help ensure adequate staffing levels. It was emphasized that past voluntary efforts had left a significant portion of health care workers unvaccinated, and also that hospitals already require measles and rubella vaccination and annual TB testing as conditions of employment. Other hospitals have mandated vaccination, and the military requires influenza vaccinations.

Several lawsuits sought to block the mandate as improperly changing employment conditions, and requiring health care workers to undergo a medical treatment with unclear risks. In late October, the Governor suspended the regulation outright, citing supply concerns.

Ethics and the Mandate

Good ethics starts with good science. Alas, while data supports the importance of vaccination generally and for certain at-risk populations specifically, the protectiveness of the vaccine is less clear. Thus, more evidence is needed to support a strong ethical claim behind a mandate, especially if additional supports for those who are the subject of the mandate have not also been offered.

In New York, while the end result — more vaccination — might be desirable, its process — an emergency regulation without adequate input and rationale — may undercut any positive “substance” to the measure. As it was, the process seemed to devalue Jane and her colleagues’ voices.

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