The New York State Public Employees Federation (PEF) has filed a lawsuit in New York’s Supreme Court, challenging a rule that requires health care workers to either get flu vaccinations or wear surgical masks during flu season.

Frustrated by earlier efforts to force health care workers to get flu shots – which was also opposed by the union -- the state’s Health Commissioner, Nirav R. Shah issued the vaccination-or-mask regulation requiring persons working in patient care to wear surgical masks during flu season, if they have not been vaccinated against the flu.

The union is asking the court to nullify the regulation, contending that it is “irrational, unduly burdensome and unproven in preventing the spread of flu from an asymptomatic health care worker to a patient.”

PEF also claims that masks can actually increase the possibility of contamination and that they can have a negative impact on patient care, making it difficult to communicate with patients who may be fearful of the mask or who may believe the mask means that either they or their health care provider may have a very serious communicable disease.

In its petition, PEF points out that the national Centers for Disease Control and Prevention (CDC), the federal Health and Human Services Department and OSHA have not recommended the use of surgical masks for this purpose.

“In fact, CDC guidelines say health care providers should only wear masks to protect themselves from infectious patients or to protect patients in procedures requiring sterile techniques,” said the union in a statement.

The flu season varies from year to year and last year lasted 22 weeks from November through April.

Since the mask requirement was issued, several New York hospitals have reported a dramatic increase in the number of employees getting flu shots.