State officials doubled down on their quest to reinstate a novel coronavirus vaccine mandate for health care workers despite the fact that it’s not as necessary as it once was and appears to have no sound legal foundation.
On Feb. 28, the state Supreme Court Appellate Division granted a temporary stay against a Jan. 13 ruling that invalidated the state’s directive that all eligible health care workers had to be fully vaccinated. New York authorities said they would appeal the decision striking down this rule, which led to the temporary block.
State Supreme Court Justice Gerard J. Neri ruled Jan. 13 against the state Department of Health mandate. He declared that Gov. Kathleen C. Hochul and health officials overstepped their authority in making such a directive. That ruling will have to wait to take effect.
“A court has temporarily blocked a repeal of New York’s COVID-19 vaccination mandate for health care workers,” according to a Post-Standard story published Feb. 28 by the Watertown Daily Times. “The state Supreme Court Appellate Division granted the stay [Feb. 28] at the request of the state Health Department. The state asked for the stay until the Appellate Division hears its appeal of a Jan. 13 decision that struck down the vaccination mandate for nurses, doctors and other employees of hospitals and other New York health facilities.
“The Health Department said in court papers that letting health care facilities hire unvaccinated people would endanger patients and other workers,” the article reported. “The Health Department contends it is authorized under state Public Health Law to mandate the vaccinations. In its appeal, the Health Department says it has required health care workers for decades to be immunized against contagious diseases such as measles and rubella.”
Neri disagreed with the contention by state officials that the Public Health Law §206(1)(1) authorized them to carry out their mandate. A group called Medical Professionals for Informed Consent filed a lawsuit against the Health Department’s action.
Former Gov. Andrew M. Cuomo first issued this directive under authority of the state Legislature. His emergency order was rescinded in June 2021, but the state Department of Health reissued the mandate permanently a year later.
A provision of the state’s Public Health Law allows the Department of Health to “establish and operate such adult and child immunization programs as are necessary to prevent or minimize the spread of disease and to protect the public health. Such programs may include the purchase and distribution of vaccines to providers and municipalities, the operation of public immunization programs, quality assurance for immunization related activities and other immunization related activities. The commissioner may promulgate such regulations as are necessary for the implementation of this paragraph. Nothing in this paragraph shall authorize mandatory immunization of adults or children, except as provided in sections 2164 and 2165 of this chapter.”
Neri ruled: “Respondents are clearly prohibited from mandating any vaccination outside of those specifically authorized by the Legislature. The sections cited by Respondents provide nothing more than general grants of power. Reading those sections in the manner urged by Respondents would render Public Health Law §206, 613, 2164, and 2165 meaningless. It is well settled that in the interpretation of a statute, we must assume that the Legislature did not deliberately place a phrase in the statute which was intended to serve no purpose.”
Despite the temporary stay, it’s unfortunate that the state is proceeding with its appeal. Neri made a valid point about the Department of Health’s lack of authority to enact this mandate. It’s very likely that this will be how this lawsuit is ultimately decided when all is said and done.
We agree with the state that being vaccinated is important for health care workers. However, immunization isn’t a guarantee against becoming infected. Instances of people who are fully vaccinated yet become infected are known as break-through cases, and they have become more common as the virus has mutated over the past three years.
As of Feb. 27, the state Department of Health identified 2,767,033 laboratory-confirmed breakthrough cases of coronavirus among fully vaccinated people in New York, according to a Department of Health news release. This corresponds to 18.8% of the population of fully vaccinated people at least 5 years of age.
The figure of 18.8% indicates an excellent chance that people who are fully immunized will be protected against the virus. But this statistic represents only those cases that were diagnosed. We don’t know how many breakthrough cases occurred among fully vaccinated people who never developed any symptoms of COVID-19 and, hence, never got tested.
So health care workers who get the jab may well still become infected. And if they do, they could pass it on to their patients.
Public health authorities are still recommending being fully vaccinated if possible, and we strongly agree with this advice. But they’re doing so now under the prem-ise that it’s the best way to avoid serious illness, hospitalization and death rather than as a good way to avoid becoming infected.
The coronavirus vaccinations are now more about personal safety than they are about containing a potential outbreak. The state is likely to lose its appeal of Neri’s ruling, so the decision to press onward with it isn’t reasonable. New York officials should withdraw the mandate and save the time and expense of pursuing an appeal — money that would be much better spent keeping New Yorkers healthy than it would lining the pockets of lawyers.
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