There is an intriguing legal battle going on in New York State as it concerns the H1N1, otherwise known as the swine flu, vaccine. The battle is between the rights of individuals versus the state’s right to try to protect its citizens.
In September, the Health Commissioner of New York decided that every health care worker in the state had to get this shot, or face disciplinary action. That action wasn’t defined by the state, but the implication was clear. If people didn’t get the shot, they would be fired. It was the first time that New York had ever made such a mandate, even in the face of other epidemics that have come around, and it created a major firestorm.
Hospitals have been working hard at getting everyone vaccinated, to the point of pushing the limits of federal HIPAA regulations, since one of the tactics they use is to send email throughout their hospitals with the names of people who haven’t been getting the shot. Also, even though patients can get notes from their physicians saying they don’t have to take the shot, either because of egg allergies or already being exposed to the virus, the state allowed the employee health offices of these hospitals to ask questions of these people, and if they didn’t like the answers they could overrule the doctor’s note and make the employee get the shot.
On October 14th, a class action lawsuit was filed on behalf of health care workers by one woman in the Albany, NY area, claiming that the state was breaching the rights of the individual in demanding they get this shot. Many people have questions about this shot, as they should based on information that’s now coming to the fold, and New York’s making this shot mandatory, when no other state or federal agency other than the military has to take it, was being challenged. The representative from the Commissioner’s office argued that the “greater good” option of the state trumped personal rights. The judge refused to halt the shots at the present time, but did say she would hold a second hearing the next week to hear more arguments for and against it.
On October 16th, three major unions filed another suit against the shot, with a totally different argument. Their argument was that the Commissioner’s office had overstepped its authority, and that these types of laws had to come from the state legislature. That judge decided the argument had merit, and has put a temporary injunction against making the shot mandatory for two weeks. There will be another hearing convened on October 30th, where more information will be presented by both sides.
Both of these are very interesting argument, and will present some very interesting results either way it goes. One of the unions joining the fight is the teacher’s union, which was on the list for having to get the shots once the health care workers had received their shots first. In the other, if the state is allowed to do this, or the commissioner’s office is allowed to do this, it means every business in the state that has a lot of interaction with others is potentially liable to be forced to have its workers get these shots, including restaurants, grocery and department stores, and people who work in athletic facilities. The commissioner’s office is saying they have no plans to do it, but they didn’t flat out say they wouldn’t do it. That’s enough to see how the justice department of the state interprets things.
