New York State’s new flu regulation requiring unvaccinated health care workers to wear masks during flu season has been implemented with mixed reactions. Of particular note is The New York State Public Employees Federation (PEF), which attempted to challenge the regulation in a lawsuit in November of last year. Last month, a decision was made by Acting Supreme Court Judge Judith Hard that denies the case and upholds the regulation.
Click here for a timeline of the flu regulation, put into effect last year.
The New York State Supreme Court maintains that the Public Health and Health Planning Council (PHC), under the Sanitary Code in New York’s Public Health Law, has the power to “establish, amend and repeal sanitary regulations.” This includes any recommendation the PHC may have regarding the preservation and improvement of public health in New York.
The adoption of the regulation, they state, went through a comment and hearing process, and was not in any way arbitrary or enacted in excess of jurisdiction, as the PEF attempted to characterize it. The severity of the 2012-2013 flu season was also an important factor in justifying the use of face masks.
The PEF argued that the masks could frighten patients, signifying that the health care provider is ill, or that they are more ill than was explained to them. Additionally they raise concerns about the regulation’s lack of procedures for wearing gloves and washing hands
The PEF also claimed that the state violated a separation of powers doctrine as defined by Boreali v Axelrod, a 1987 court case regarding a statewide smoking ban. That ruling stated that if an agency engaged in all of the following activities, then it has violated the separation of powers doctrine:
- If it balanced competing concerns of public health and economic costs
- If it made its own set of rules without legislative guidance
- If it made rules in an area where the legislature had already tried and failed to reach an agreement
- If the regulations did not require the agency to have expertise in the relevant field
This court’s decision stated that the basic policy of the regulation was put forth by the Legislature, rendering the Boreali analysis of separation of powers inapplicable. In response to the notion that the regulation does not include anything about wearing gloves and washing hands, the court noted that these practices are standard procedure for infection control, and that there was no need to reiterate their importance in the new regulation.
The court also suggested that educational incentives at health facilities could serve to quell misconceptions among patients concerning the use of the masks.
The State Supreme Court offered in-depth explanations that addressed each of the PEF’s claims, and the regulation will remain in place for future flu seasons in New York.
