New York State Bar Association Calls Upon State To Consider Mandating a Safe and Effective Vaccine if Voluntary Measures Fail To Protect Public Health

New York State Bar Association Calls Upon State To Consider Mandating a Safe and Effective Vaccine if Voluntary Measures Fail To Protect Public Health

11.7.2020

By Susan DeSantis

The New York State Bar Association (NYSBA) is recommending that the state consider mandating a COVID-19 vaccine once a scientific consensus emerges that it is safe, effective and necessary. But before taking this significant step, the state government should conduct a public awareness campaign to urge voluntary vaccination.

NYSBA’s House of Delegates approved a resolution on Nov. 7 outlining conditions for requiring the vaccine for all New Yorkers save those exempted by doctors. It would be up to public health authorities to decide if a vaccine mandate is necessary, and whether it should apply to all residents or to a smaller population such as health care workers or students.

With the number of cases again on the rise both nationally and statewide, the association is asking the state to:

• Ensure that vulnerable populations are treated ethically and without discrimination. This includes communities of color, older adults, nursing home residents, people with disabilities, prisoners and immigrants. New York Governor Andrew M. Cuomo and Attorney General Letitia James and two national civil rights organizations have criticized the federal government’s plan to distribute the vaccine through pharmacies. They say the plan falls woefully short of meeting the needs of communities of color that were disproportionately harmed by the pandemic.
• Enact a state emergency health powers act and crisis standards of care addressing gaps in existing law. This is essential to a well-coordinated response to the pandemic, increasing the capacity of the system if there’s a surge in cases. It would also clarify the legal authority and ethical standards for making decisions if there are shortages of anything from personal protective equipment to trained health care workers.
• Release older prisoners and those with disabilities and serious illnesses who do not pose a danger to the community
• Eliminate restrictions on the provision of care by telehealth and increase reimbursement for such services

“The magnitude of the COVID-19 pandemic is unprecedented over the last 100 years by any measure – the number of lives lost, the survivors who remain seriously ill, the risks faced by health care workers, the disproportionate impact on communities of color, the profound trauma and the disruption to our economy,” said NYSBA President Scott M. Karson. “The United States was unprepared to deal with this pandemic. We need to take these actions to be sure we are ready should there be a rise in New York’s caseload during the cold, winter months.”

“In balancing the protection of the public’s health and civil liberties, the Public Health Law recognizes that a person’s health can and does affect others,” said Mary Beth Morrissey, chair of the Health Law Section’s Task Force on COVID-19, which proposed the resolutions approved by the House of Delegates today.

“The authority of the state to respond to a public health crisis is well-established in constitutional law. It may become necessary to require that certain individuals or communities be vaccinated, such as health care workers and students, to protect the public’s health,” said Morrissey, a research fellow at Fordham University’s Global Health Care Innovation Management Center and a faculty member in the graduate schools.

About the New York State Bar Association
The New York State Bar Association is the largest voluntary state bar association in the nation. Since 1876, NYSBA has helped shape the development of law, educated and informed the legal profession and the public, and championed the rights of New Yorkers through advocacy and guidance in our communities.

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Contact: Susan DeSantis
sdesantis@nysba.org
518-487-5780