Citing a shortage of the H1N1 vaccine, New York state has suspended a Health Department mandate that would have required most of the state's health care workers to be inoculated against H1N1 and seasonal flu or face loss of their jobs.

The decision, announced by Gov. Paterson Oct. 22, came in the wake of three lawsuits filed against the Health Department, including one by NYSUT on behalf of two State University of New York hospital employees.

Like most hospital employees with direct patient contact, the two Stony Brook University Medical Center employees had been ordered to get vaccinated by Nov. 30 or lose their jobs, a move the union felt violated their constitutional rights.

Following the governor's announcement, state Health Commissioner Richard Daines said those at highest risk of complications from the illness, including pregnant women and children, should have first access to the vaccine.

Cases of the flu are rising across the state and many school districts are being slammed by the virus. (School nurses were not included in the mandate to get the vaccine.)

Worcester School in Otsego County closed Oct. 22 with nearly 150 of its 413 students, and 10 teachers, absent. The State Education Department said it was the first district to close this school year due to the virus.

NYSUT filed suit on behalf of Stony Brook employees Robert Savoca, a physical therapist, and Steven Lynch, a medical radiographer. Both are members of United University Professions, NYSUT's affiliate at SUNY.

"It is a violation of their constitutionally protected liberty interests to have to undergo an unwanted vaccination," said NYSUT associate counsel Elizabeth Schuster. "It is an intrusion."

UUP President Phil Smith thanked NYSUT for standing "shoulder to shoulder" with the higher education affiliate in defending workers' right to choose whether they want to be vaccinated. "You get a lot further by asking than by demanding. We believe this is a personal choice,"

Immediately after the filing, a state Supreme Court judge in Albany County issued an order temporarily banning the Health Department from enforcing the mandate, pending a followup hearing. The hearing had been scheduled for Oct. 30 to hear motions on the NYSUT suit and others filed on behalf of nurses at Albany Medical Center and one by the Public Employees Federation.

NYSUT's Schuster said while the goals of the lawsuit had been met, the union was awaiting further confirmation of the order's suspension as New York Teacher went to press. If the lawsuit is withdrawn, she said, it would be with the right to refile.

The vaccination mandate has drawn national attention since New York is the only state to date to order such a mandate. Some private and public hospitals are also requiring employees to take flu shots.

The lawsuit is based on the grounds that Daines exceeded his authority, as only the state Legislature has the power to legislate.

"This suit does not weigh in on the safety of the H1N1 vaccination or the potential seriousness of an H1N1 outbreak," said NYSUT President Dick Iannuzzi. "It does, however, seek to protect the rights of workers to make informed choices as individuals in deciding whether or not be vaccinated."

Gov. Paterson said the Centers for Disease Control and Prevention reported New York would receive only about one quarter of its expected vaccine supply by the end of October and it should be first available to those at the highest risk of complications.

According to the state Health Department, the CDC originally projected 200 million doses of H1N1 vaccine would be available by the end of November; the CDC now projects only 65.9 million doses will be available nationwide by the end of that month.

New York state receives 6 percent to 7 percent of the national vaccine supply, based on population.