Health care workers at Albany Medical Center Hospital started earlier this week and nursing home residents in Albany County are slated to get the first round of COVID-19 vaccination on Monday Dec. 21., marking local implementation of the largest coordinated governmental effort in recent memory.
The logistics of administering the vaccine to nearly 330 million Americans is unprecedented, and made more complex by the urgency associated with the recent surge of COVID cases and the resulting hospitalizations and deaths that are surpassing numbers seen this spring when the virus first began taking hold in upstate.
The distribution of the federally approved vaccine will fall to the states, and will include an intense education component since mandating a vaccine is still not an accepted practice. But, that could change depending on how many people opt out and if that number if large enough to jeopardize an immunity of at least a 75 percent, the widely accepted number necessary to achieve a degree of normalcy in how we do business, educate children and recreate.
As of right now it will be left to the individual on whether or not to get the two shots that will, according to three drug companies, prevent COVID-19 with a 95 percent guarantee. Even with the nearly unprecedented efficacy rate, and the little or no side effects seen in other parts of the world that are already administering the vaccinations, there are still skeptics and those who will under no circumstance voluntarily get a vaccine.
“There are certainly a large amount of vaccine hesitant people but we have never faced a public health crisis like this before,” said Dr. Elizabeth Whalen, head of the Albany County Health Department. “The magnitude of this, the seriousness of this, the risk of what happens particular to elderly individuals. Seeing first responders and hospital workers be vaccinated will help with people’s comfort level of vaccine and hopefully people will educate themselves and see that it is safe and is in the public’s best interest to have everyone who can get vaccinated.”
Former presidents, health care officials, elected officials all say they will take the vaccine, on television if necessary, to ease concerns and possibly avoid the need for a mandate and all the problems associated with that including legal battles, elevated skepticism and the nearly impossible task of enforcement. 
Phase I in New York will see the most at risk health care workers and nursing home residents get vaccinated; phase II will include first responders, teachers and essential workers who deal with the public like grocery store workers; phase III will include people older than 65 and those younger who are at risk of getting the sickest from COVID; Phase IV will be all other essential workers and Phase V will be healthy adults and children.
Some say it could take as long as September, 2021 to reach the 75 percent immunity while others say it could happen as quickly as June. Until that happens, officials continue to warn people to wear masks and social distance and follow the same protocols drilled into our daily lives since March.
State law
In New York state, according to Public Health Law, every student attending public, private or parochial school must be vaccinated for diphtheria, tetanus, pertussis, measles, mumps, rubella, poliomyelitis, hepatitis B, varicella and meningococcal. Students attending post-secondary institutions, who were born on or after Jan. 1, 1957 and registered for six or more credit hours must be vaccinated against measles, mumps, and rubella.
Furthermore, it requires all persons who work at hospitals, nursing homes, diagnostic and treatment centers, certified home health agencies and programs, licensed home care services agencies, and hospices be immunized against measles and rubella.
It falls short of mandating a vaccine for influenza, though, and instead “requires long-term care facilities, adult homes, adult day healthcare facilities, and enriched housing programs to provide or arrange for influenza vaccination for all residents and employees every year.
Residents and employees may refuse vaccination after being fully informed of the health benefits and risks of such action,” according to state law.
There was a religious exemption to mandatory vaccinations up until last year when the state successfully challenged it in court to quell an outbreak of measles in the orthodox Jewish communities to that no longer is an option. California, Maine, West Virginia and Mississippi have also eliminated all personal belief and religious exemptions to vaccinations.
There are medical exemptions to mandating vaccines and they include a basic broad statement that a school child is exempt if the vaccine is “detrimental to a child’s health” as determined by a licensed doctor.
County Executive Dan McCoy said the logistics of dealing with nursing home residents and employees who refuse a vaccine will be determined sometime before Dec. 21. He did say there is not a plan in place to mandate the vaccinations at this time but would instead be up to the federal and state governments to decide and it may still happen at some point in the future depending on how many opt out.
“It would seem to me the courts would do a balancing test. There are certainly some restriction and coercion to mandating a vaccine however the risk to the other residents are so high compared to the risk to the person getting the vaccine it would be found to be constitutional,” said Laurie Shanks, a professor at Albany Law School. “That may change if it is determined there are severe effects but we have not seen that yet.”
Privacy
According to the Center for Disease Control, the landmark 1905 Supreme Court decision ruled that a state can mandate vaccines and levy a criminal fine for those not in compliance.
“More broadly, the court ruled that the state can impose ‘reasonable regulations’ to protect the public health, even when such regulations interfere with individual rights,” according to the CDC of the court case, Jacobson v. Massachusetts.
There is not any law in New York preventing an employer from mandating an employee get vaccinated for the flu, and there is not any state law requiring an employee get vaccinated for the flu. There is also nothing on the books requiring any private citizen get an influenza vaccination, the enforcement of which is nearly impossible.
According to the National Law Review, absent any state law to the contrary, “employers may require employees to get vaccinated from the flu.” However, it’s not that simple. There are exemptions provided by the federal Equal Employment Opportunity Commission and if they are met the employee must make “reasonable accommodations” for the employee such as designating an isolated place to work or providing a mask, goggles or other Personal Protective Equipment.
But, with so much related to COVID-19 — a novel, or new, coronavirus — that has wreaked havoc around the world, old standards could be modified.
There is a bill introduced in the state Assembly that would require all New Yorkers to get vaccinated if not enough people accept the vaccination voluntarily to “develop sufficient immunity.”
The New York State Bar Association, in a position paper, recommending the state mandate the COVID vaccine for everyone across the board who does not have a medical exemption — but only if a public education campaign does not proven effective.
“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. “The authority of the state to respond to a public health crisis is well-established in constitutional law.”
Public sentiment
Before the first shot has been administered, though, it appears such draconian measures will not be necessary.
A Siena College Research Institute poll found the majority of New Yorkers, or all political persuasions, race, creed and color, will definitely or probably get the vaccine.
“Seventy-four percent of Democrats say they will definitely or likely get the vaccine, as do 65 percent of Republicans, 64 percent of independents, 72 percent of white voters, 65 percent of Latino voters, 62 percent of Black voters, 76 percent of Biden voters, and 62 percent of Trump voters,” said SCRI pollster Steven Greenberg. Just 25 percent say they will definitely not or probably not get a vaccine.
At Albany Medical Center, Dr. Ferdinand Venditti, the executive vice president for System Care Delivery and general director, said it will not be mandated for employees at the hospital, though it was discussed. He said an informal poll found 80 percent of the employees are willing to take the vaccine voluntarily.
“There is a crisis of confidence so we must lead by example. I am comfortable taking it, my wife taking it, my kids taking it,” he said. “Health care workers are accepting the vaccine and my hope is people will see that and acknowledge that informed people in our community are getting the vaccine and will follow suit.”
