Friday, October 16, 2009

Judge's order blocks forced flu shots

ALBANY - As the fight against mandatory flu shots for health care workers gained momentum, it was inevitable the battle would arrive in a court room.

In state Supreme Court in Albany Friday, those opposed to the shots won the first round. Judge Thomas McNamara issued a temporary restraining order against the mandate. That means, for the time being, the state Department of Health regulation is on hold.

"We are very pleased by this decision at this time," Public Employees Federation attorney William Seamon said.

PEF, along with New York State United Teachers and a group of nurses represented by attorney Terry Kindlon argued that New York's health commissioner overstepped his authority by mandating the shots.

"Only the Legislature under its public power, police power, has the authority to enact this type of requirement," Seamon said.

"Our second claim is that this 'emergency regulation' has been in the works for approximately two years and we think that clearly undermines and undercuts any argument that this was needed for an emergency basis," he added.

Nurses rallied twice at the state Capitol in opposition to the mandate. While many agree to have the shot, they vehemently disagree with being forced to have them and have their jobs on the line if they don't comply.

In a statement, the Health Department said the restraining order is only temporary and it's confident their policy will be upheld.

"The Legislature of this state has charged the commissioner of health with the responsibility of making hospitals safe places to get well. These regulations are tailored to accomplish that end," the statement said.

So between now and Oct. 30 both sides will bolster the arguments they bring into court for a formal hearing.

Until then the restraining order will remain in place.

"Absolutely, it is cast in stone," Kindlon said.

Kindlon and Seamon say they feel confident they will win at the Oct. 30 hearing.

In the meantime, hospital officials say they'll continue offering flu shot clinics for staffers who want the shots.

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