Flu-Vaccine Mandate for NYC Children Reinstated

ALBANY (CN) - The state’s highest court backed New York City health agencies on Thursday for mandating that children who attend city-regulated or school-based programs get a flu shot.

The requirement, which goes into effect immediately, covers all children between the ages of 6 months and 59 months who are enrolled in preschools and day care centers licensed by the city.

New York City’s Board of Health first passed the rule in December 2013, but a challenge by five parents led a Manhattan judge to issue an injunction against it. The board appealed to New York’s highest court after another panel of judges agreed in 2016 that the city did not have the authority to mandate vaccinations.

Thursday’s reversal by the New York Court of Appeals was unanimous.

“The board’s promulgation of the flu vaccine rules falls squarely within the powers specifically delegated to the department in New York City Administrative Code § 17-109, and the board’s actions did not violate the separation of powers doctrine,” Judge Leslie Stein wrote for the court.

“Further, the flu vaccine rules are not preempted by state law.”

Chief Judge Janet DiFiore joined in the 25-page opinion, as did Judges Jenny Rivera, Eugene Fahey, Michael Garcia, Rowan Wilson and Paul Feinman.

Richard Dearing, who heads the NYC Law Department’s Appeals Division, celebrated the decision. “We are pleased with this unanimous decision, which recognizes the ‘very direct connection’ between the board’s flu vaccine rule and ‘the preservation of health and safety,’ and agreed that the rule is ‘squarely within’ with the board’s delegated powers and consistent with state law,” Dearing said.

In a statement Thursday, New York City Health Commissioner Mary Bassett said: “This decision will help us protect more than 150,000 children in city-regulated day cares and preschools across the city.”

When they filed suit in 2015, the five parents called the flu-shot mandate a “bold and gross violation of the separation of powers.”

Denying that they are anti-vaxxers opposed to the science of vaccination, the parents insisted that they “provide and continue to intend to provide their children with all vaccines required by New York state law.”

The city’s board has mandated smallpox vaccinations of minors since 1866 and has required other vaccines for children enrolled in city-regulated day care centers since at least as early as 1948, when it directed that children be immunized against diphtheria prior to admission.

Aaron Siri, an attorney for the families with the Manhattan firm Siri & Glimstad, did not respond to request for comment Thursday afternoon.

Follow @jruss_jruss

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit