Testimony before the State Hospital Review and Planning Council Codes and Regulations Committee, September 17, 2009, New York, NY.
Speaking on behalf of its 37,000 registered nurse members, the New York State Nurses Association continues to oppose the emergency amendment to the Official Compilation of Codes, Rules, and Regulations of the State of New York requiring healthcare personnel to be vaccinated for influenza.
We are urging that, in the absence of a declared public emergency, this regulation be allowed to expire. This will permit the State Hospital Review and Planning Council, the Department of Health, and the various stakeholders to fully review the impact of this rule.
Over the past month, the Nurses Association has been inundated with calls from nurses and other healthcare personnel who have questions and concerns about this mandate. We set up a special hotline to deal with the volume of inquiries. It is clear to us that there is widespread misunderstanding and misinformation about the mandate.
This confusion extends to the Department of Health itself. Callers to DOH have been told that the mandate is a law and if they object to it they should call their legislators. We have talked to legislators, and of course they had nothing to do with this regulation – not yet, anyway.
In a recent memorandum to DOH staff, Commissioner Richard Daines informed them that healthcare personnel in many facilities are now required to be immunized each year. He added that the regulation does not apply to DOH staff, but it was his “recommendation and expectation” that DOH staff members who work in these settings get vaccinated.
If only nurses and other healthcare personnel had this choice. We agree that flu vaccination is “recommended and expected” of healthcare providers. But we don’t agree that a segment of the population should be forced to be immunized as a condition of employment.
OSHA, the Centers for Disease Control and Prevention, the World Health Organization, and other government agencies and healthcare organizations all recommend that healthcare workers be immunized to prevent disruption of the healthcare delivery system due to widespread absenteeism. None have recommended mandatory immunization.
President Barack Obama stated there is no intention to make the H1N1 vaccine mandatory. This message was repeated on the NBC Nightly News on Sept. 15, the day the vaccine was licensed for distribution. Nurses and other healthcare personnel are being bombarded with conflicting messages: is there an emergency that requires mandatory vaccination or is there not?
The same ambivalence surrounds the contagious nature of influenza and H1N1. The CDC has indicated that healthcare personnel who are caring for influenza patients should use at least a fit-tested N95 respirator to prevent infection from aerosolized virus particles. This recommendation was confirmed by an IOM study released on September 3.
Once again, the New York State Department of Health stands alone. This time, however, it differs from federal agencies by telling healthcare facilities in New York that surgical masks are sufficient protection for H1N1. Nurses tell us that N95 respirators continue to be unavailable to them in the workplace. This is hard to understand, unless DOH is counting on mandatory flu shots to stop the transmission of the disease, making proper infection control unnecessary.
As we have previously testified, while vaccinations are generally effective, they do not guarantee protection from the flu. If the vaccine is poorly matched to the virus in circulation, vaccinated individuals can still contract the flu. Infection control is still necessary. In addition, to our knowledge DOH has offered no guidance to facilities about how to assign and protect workers who cannot be immunized for medical reasons.
It also is unclear whether nurses who are fired because they refuse to be immunized will be subject to unprofessional conduct charges under Regents Rules Part 29.
To return to the concerns expressed in the hundreds of calls we have received, nurses and other healthcare personnel object to:
The Patients Bill of Rights includes the right to refuse medication. The dedicated workers providing care should have the same rights as their patients.