In addition to the lawsuits challenging the New York mandate, the New York Civil Liberties Union testified before the New York State Assembly Committees on Health, Labor, Education, Higher Education and Workplace Safety, and sent a letter to Mr. Daines explaining that the mandate conflicts with well established legal principles and public health policy and violates the right of competent adults to direct the course of their medical care and treatment. The NYCLU argues the H1N1 vaccine is distinguishable from other mandatory vaccines because the mortality rate for those who contract H1N1 is lower (compared to smallpox), and the vaccine is not 100% effective in preventing the disease, treating it, or preventing transmission (unlike the vaccines for measles, mumps, and rubella, diphtheria, polio, and tuberculosis). Furthermore, the NYCLU points out that,
If significant numbers of health care workers refuse to be inoculated and are fired, health care facilities could be seriously understaffed at the very moment HINI is expected to cause a surge in hospital visits. And if health care workers are confused and upset about compulsory vaccinations, what are their patients to think? As reports of health care workers refusing vaccinations become public, confusion and worry will grow in the general population. And even if vaccination is the appropriate medical option for individuals, people may become increasingly reluctant to choose that option.
Part of the reasoning behind the mandate is to keep health care workers healthy, so they can care for patients. New York already has a shortage of nurses, and maximizing the number of working nurses will be critical if H1N1 causes an influx of patients. As the NYCLU points out, however, if a significant number of nurses (and other health care workers) are fired because they refuse the vaccination, the mandate will prevent many healthy nurses from caring for patients. George Annas, professor of health law and bioethics at Boston University School of Public Health, adds that if enough physicians and nurses refuse vaccination, the mandate will be unenforceable, since no responsible public health official would try to close a hospital for failure to comply with the mandate in the midst of a flu epidemic. How many health care workers would choose dismissal over vaccination? Enough to close a hospital? More than how many, without the mandate, would miss work after catching the flu? How will these changes in staff size and flu exposure impact patient health?