While she declined to issue a temporary order suspending the statewide requirement that health care workers be vaccinated against H1N1 and seasonal flu, state Supreme Court Justice Marylin Diamond nevertheless scheduled a hearing for next Thursday on a request for a permanent injunction.
Maternity nurse Suzanne Field, who lives upstate, had sued to stop implementation of the regulation, which was adopted by the state earlier this year. The mandate requires about 65,000 health care workers, such as nurses and doctors who have direct contact with patients, to receive vaccines against swine flu, known as H1N1, and the seasonal flu by Nov. 30.
Diamond's ruling did not go to the merits of the lawsuit, which was brought by Field against state Health Commissioner Richard Daines. Instead, Diamond found that the Nov. 30 deadline in the regulation didn't pose an immediate threat of harm to Field or other nurses who don't want to get vaccinated in the face of possible job loss.
The controversial rule allows an exemption from the requirement for workers who have a medical exception. Officials also said possible vaccine shortages might, in some cases, extend the Nov. 30 deadline.
Diamond said there is plenty of time for Field and state officials to wait for a hearing on the injunction, complete with scientific and statistical evidence about the vaccine's availability and possible side effects.
State Assistant Attorney General Katherine Leone said in court that the regulation was justified by a "health emergency" which state, federal and international health officials believed existed.
Patricia Finn, the Rockland County attorney who is representing Field, said that the vaccine had been rushed to market and that nurses shouldn't be forced to get the vaccine by the prospect of loss of employment.
"There is no emergency. The World Health Organization has declared a pandemic, but this is no epidemic," Finn said.