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New York recently mandated that all healthcare personnel working in hospitals get H1N1 vaccinations. If the worker doesn’t get it, they can’t work in the hospital. What would happen if my group [a democratic physician group] decided not to get it? Do you think the group would back me up?
Concerned Doc
Dear Concerned,
There are several questions either explicitly stated or implied in your email, so let’s take them one at a time.

1. Does New York have the legal authority to mandate H1N1 vaccinations for healthcare workers?
The short answer is yes. Probably. The main requirement for mandatory vaccination is a reasonable basis in terms of a threat to the public welfare which justifies encroaching on the liberty of individual persons. Although there can be a debate about whether the threat in this case is sufficient to justify the mandate, challenging New York’s conclusion would be an uphill battle, especially in the face of the declared pandemic, and the various preparations which are actually being made to meet what most regard as a likely scenario of multiple cases of H1N1 flu and a significant number of resulting deaths. The precedent, of course, is that governments across the nation have required various vaccinations for health care workers in the past, and those actions have almost always been upheld in the face of challenges. I’m not saying New York is right in this case, or that mandating H1N1 vaccination in health care workers is a very bright idea (I agree with those who conclude that it isn’t), just that something may be stupid, but still legal. Note that I’m also not saying that getting the H1N1 vaccine is a bad idea (it isn’t, and as soon as it becomes available, I intend to get vaccinated), just that making it mandatory is not a good idea, especially not with a novel vaccine.

2. Do we have any recourse?
The action that will most likely result in a modification or retraction of the mandate is to mount political pressure on legislators and health authorities. You could go to court and challenge the mandate, but given what I’ve said above, such a challenge would not only be very expensive, but would not have a great chance of success. Understand that New York as a state is not exactly a hotbed of liberty and defense of individual rights and freedom, and the voters of New York appear to be fairly comfortable with expanding government power and a philosophy of centralized command and control rather than a free market and defense of individual liberty. Sorry for getting on the political soapbox, but that’s the reality you have to deal with. For better or worse, part of the legacy of 9/11 is that trotting out the banner of “the greater good” and “defending against threats to safety” is all that is required to justify sacrificing individual rights, and we are already seeing those justifications being trotted out to deflect the growing protests against the mandate.

I understand there are a number of professional and union organizations who are actively protesting the mandate, and the more people who are engaged in these protests, the better the chance of the mandate being retracted, even though I think that chance is probably slim.

3. Will our group back us up?
First of all, I’m not sure who you mean. Since your group is democratic, you and the rest of the affected docs are the Group, so ask yourself the same question. Also, back you up for doing what? Refusing to get vaccinated and getting fired or losing the contract? Given the mandate, unless there is civil disobedience on a mass scale, I don’t really see hospitals going along with emergency physician refusals, and the likely result will be that the hospital will ask that any emergency physician refusing to be vaccinated be removed from service. If that means the group is unable to staff the ED, the hospital will quickly look for alternative staffing, even if that means bringing in another group that accepts vaccination as the price of the contract. So what should you do in those circumstances? What do you want to do? Understand that if you engage in civil disobedience, you may earn respect for taking a principled stand about something, but that won’t shield you from being penalized. I would join anybody else who respected an emergency physician for making a principled stand by refusing to be vaccinated, but I would not expect the hospital to just ignore it, and I wouldn’t criticize the hospital for doing what they have to do under the circumstances.

“Concerned doc” replies:
Thanks for taking the time to answer. I will be getting the vaccine as I am not in a financial position to be unemployed at the moment and I don’t have a medical license in any other state.  But I certainly dread coming in to work after the deadline to find that we have no techs or nurses on.  The ED cannot run on MDs alone, and a lot of the nurses here are going to refuse to get it.

Since this was written, lawsuits have been filed in federal court and New York state court to block the New York mandate. On October 16, a New York state court judge granted a temporary restraining order blocking enforcement of the mandate pending a full hearing on the issue. This doesn’t mean the lawsuit is any more likely to be successful once the full hearing and all appeals are finished.

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