ALBANY – PEF filed a lawsuit November 26th in state Supreme Court, Albany County, challenging a regulation of state Health Commissioner Nirav R. Shah requiring persons working in patient care to wear surgical masks during flu season, if they have not been vaccinated against the flu. The flu season varies from year to year and last year lasted 22 weeks from November through April. The union is asking the court, on behalf of affected health care workers PEF represents statewide to nullify the state Health Department regulation.
Previously, PEF won a restraining order when the union challenged a directive of the state health commissioner mandating flu vaccinations for nurses and other health care workers . PEF is challenging the current regulation on the basis that the Commissioner is, once again in effect, mandating that affected workers get vaccinated because the alternative mask requirement is irrational, unduly burdensome and unproven in preventing the spread of flu from an asymptomatic health care worker to a patient.
PEF contends in the lawsuit filed yesterday that:
- Wearing a mask does not prevent the spread of influenza between asymptomatic healthcare workers and their patients;
- Masks can actually increase the possibility of contamination;
- Masks can have a negative impact on patient care making it difficult to communicate with patients who may be fearful of the mask or who may believe the mask means that either they or their health care provider may have a very serious communicable disease.
In its petition, PEF points out that neither the national Centers for Disease Control (CDC), the federal Health and Human Services Department , nor the federal Occupational Safety and Health Administration have recommended the use of surgical masks for this purpose. In fact, CDC guidelines say health care providers should only wear masks to protect themselves from infectious patients or to protect patients in procedures requiring sterile techniques.
PEF President Susan M. Kent says, "As a solution-driven union, we sought the assistance of occupational health care expert William Keith Borwegen to help us research this issue. Mr. Borwegen challenged Health Commissioner Shah's contention that masks are an effective means to prevent the spread of flu from asymptomatic healthcare providers to patients and that there is simply no solid, evidence-based science supporting the commissioner's claim. While we care deeply about our members and the patients and communities we serve, we will not allow the state to bully our members into getting a vaccination."
PEF is the state’s second largest public employee union, representing approximately 54,000 professional, scientific and technical employees of New York State and other public and private employers. For more information, call Jane Briggs, executive assistant to the PEF president at 518-785-1900, ext. 211.