In response to the swine flu pandemic sweeping the nation, New York in August 2009 became the only state in the United States to adopt an emergency regulation requiring most health care workers who come into contact with patients to get annual vaccinations for both seasonal and swine flu (H1N1) by no later than November 30, 2009. The regulation, issued by the New York State Commissioner of Health, provides a limited exemption for workers with “medical contraindications,” but not for those with a religious or ideological opposition to the vaccination.

In response to the emergency regulation, several unions and other groups filed suit in New York, challenging the mandatory vaccinations and the authority of the New York State Health Commissioner to institute mandatory vaccinations.

On October 16, 2009, New York State Supreme Court Justice Thomas J. McNamara issued a temporary restraining order in one of the lawsuits filed in Albany, proscribing the mandatory vaccination. The New York State Commissioner of Health and the New York State Hospital Review and Planning Council plan to vigorously defend the suit and the Commissioner’s authority to mandate vaccinations. The court scheduled an October 30 hearing regarding whether the restraining order should be lifted.

The temporary restraining order prohibits enforcement of New York’s mandatory vaccination law, but does not prevent employers from voluntarily offering influenza vaccinations to their employees. In addition, the temporary restraining order does not apply to employers outside the health care sector or to health care employers outside of New York. Nonetheless, employers should be cautious before implementing a mandatory immunization requirement. The EEOC recently issued guidance suggesting that mandatory immunizations might violate the ADA in certain circumstances. We will be publishing shortly additional recommendations in light of the EEOC’s recent guidance.

This entry was written by Philip L. Gordon.