Flu Mask Rule OK’d by N.Y. Appeals Court

ALBANY, N.Y. (CN) - New York's former health commissioner acted "comfortably" within his authority when he ordered health care workers to wear masks around patients during flu season, a state appeals court ruled.

The state union representing professional, scientific and technical workers sued the New York Department of Health and then-Commissioner Nirav Shah after the new rules were implemented in 2013.

The rules require that health care workers who have not been vaccinated for influenza wear a surgical mask during flu season when they are in areas where patients or other vulnerable individuals might be present.

Wayne Spence, president of the 53,000-member Public Employees Federation, claimed the rules were arbitrary and an overreach when he filed the lawsuit in late 2013. Four nurses represented by the union were also named as plaintiffs in the complaint in Albany County.

A judge dismissed the action in June 2014, leading to an appeal to the New York Supreme Court Appellate Division's Third Department in Albany.

On Thursday, the appeals court decided the rules could stand because the Legislature gave the Department of Health broad authority to protect public health.

"Addressing and attempting to minimize the risk of patient exposure to influenza during influenza season falls comfortably within the intent of the underlying legislation," Justice Michael Lynch wrote for a four-judge panel.

Lynch noted that, when complaints are raised of agencies operating beyond the scope of their authority, the court applies a four-part Boreali test, named for the analysis done in the 1987 case Boreali v. Axelrod.

The test checks to see whether an agency is enforcing the rules set by the Legislature or is trying to write rules of its own.

"[The Department of Health] did not operate outside its sphere of authority or without the benefit of legislative guidance...upon considering the Boreali factors, as well as other circumstances relevant to whether DOH acted beyond its power, we are unpersuaded that DOH crossed into the legislative sphere," Lynch wrote.

The panel pointed out that the rules give health care workers the choice of getting a flu shot or wearing a surgical mask.

"It thus affords workers options while advancing the closely tailored goal of attempting to minimize an unwarranted and unnecessary public health risk from the spread of influenza," Thursday's 6-page ruling states.

The appeals court also said the rules were not arbitrary or irrational, as "the record contains sufficient scientific and factual evidence to support the regulation."

Emily Lutterloh, director of the department's Bureau of Healthcare Associated Infections and a physician and expert in the field, submitted a detailed affidavit about flu transmission in health care facilities and effective ways to combat it, according to the ruling.

The department also reviewed studies and recommendations from the Centers for Disease Control and Prevention, the U.S. Food and Drug Administration and the Infectious Disease Society of America.

Spence and the four nurses "failed to show that the regulation ... was unreasonable or unsupported by evidence in the record."

Spence released a statement Thursday expressing disappointment about the decision.

"We believe this is an important case and are reviewing whether to seek permission to appeal today's decision to the Court of Appeals," he said.

Spence noted the union still has a challenge pending at the Appellate Division to amendments made to the rules in 2014, which Thursday's decision called "minor" adjustments to where the masks should be worn. The amendments also carved out a few exceptions in instances where a patient might be a lip reader.

On Feb. 11, the Department of Health declared influenza to be "prevalent" in New York, triggering the mask-wearing rule for this flu season. The season typically runs from October to May and peaks in February.

"By requiring those [health care workers] who are unvaccinated to wear masks when they're around patients, we're doing what we can to protect the most vulnerable, which includes the sick and the elderly," Health Commissioner Howard Zucker said in a news release.

Zucker succeeded Shah, who left the job in mid-2014 to take an executive position with Kaiser Permanente Southern California.

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