The legal battle for required flu shots
Two impending court hearings on required flu vaccines for healthcare workers in New York carry significant weight. New York is the first state to require flu shots for healthcare workers, and subsequently both cases could set precedent for years to come, potentially impacting the way states and hospitals handle future flu vaccination requirements.
The first hearing, scheduled for Thursday October 22, takes place in Manhattan and was filed by attorney Patricia Finn on behalf of registered nurse Suzanne Field.
The second hearing takes place in Albany on October 30, after Acting Justice of the State Supreme Court in Albany Thomas J. McNamara ordered a temporary restraint on the New York regulation.
Bennet Alsher, a partner at Ford and Harrison LLP, says that each case will be treated separately initially, but could ultimately be consolidated for appeal. This means a judge in the October 30 case does not need to account for any verdict in the October 22 hearing. However conflicting verdicts could lead to a later decision at a higher court.
Precedent
Jacobson v. Massachusetts, a 1905 Supreme Court case, is the most prominent case that aligns closely with mandatory vaccination.
The final verdict upheld the authority of the state of Massachusetts to vaccinate anyone over the age of 21 against smallpox, or pay a $5 fine. The verdict supported the idea that the rights of one citizen do not override the common good, and that “government is instituted ‘for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interests of any one man, family, or class of men.”
The court concluded that the regulation was necessary because smallpox presented a significant danger to the welfare of the general public.
“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” said Justice James A. Halloran, who delivered the opinion of the court.
However there are significant gaps when applying Jacobson to 21st century medicine, as pointed out in The Harvard Law Review, May 2008, including the argument that many 21st century vaccines are “qualitatively different from their predecessors in that they are not medically essential to preventing the spread of disease.”
Officials from the New York State Department said in a statement on Friday that they plan to “vigorously defend the lawsuit,” and referenced a 1990 case in which a state court upheld mandatory rubella vaccinations and annual tuberculosis testing for healthcare workers.
A Congressional Research Service article delves into this subject and concludes that states have the primary responsibility for protecting the public health.
Alsher said its possible OSHA’s General Duty Clause could also come into play in a court of law. According to the clause, “each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” One could argue that by vaccinating workers, hospitals are protecting employees from hazards associated with influenza.
James Colgrove, PhD, MPH, the academic coordinator at the Center for the History and Ethics of Public Health in New York City says that from an ethical standpoint, the arguments to vaccinate healthcare workers are compelling, especially considering the required vaccines that are already in place.
“I would actually be very surprised if a court were to rule against one of these laws,” Colgrove says. “I would really expect the courts to support them, mostly because courts in general tend to be pretty deferential to public health laws in general.”
Either way the verdicts could prove monumental, possibly providing the legal foothold for other states to follow in the footsteps of New York.
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