NYC Supreme Court Mandate Shutdown

NY Supreme Court Judge Rules City Vaccine Mandate Unconstitutional

Over 2,000 New York City workers were fired during the COVID pandemic for not getting the COVID vaccine.

On October 24, 2022, a New York Supreme Court judge ruled the city’s COVID vaccine mandate to be arbitrary, capricious and unconstitutional.

This blog post will breakdown the details and takeaways of the judgment decision. You are encouraged to read the judge’s ruling in its entirety here.

Who Were the Parties Involved in the Lawsuit?

The petitioners were sixteen workers of the New York City Department of Sanitation who filed the lawsuit on July 20, 2022, after they were terminated in February 2022 for failure to comply with the vaccine mandate. All provided lab documentation of natural immunity from previous COVID infection.

The respondents include the City of New York, New York City Department of Health and Mental Hygiene, New York City Department of Sanitation, the Commissioner David Chockshi of the Department of Health and Mental Hygiene and Mayor Eric Adams.

Background of the Vaccine Mandate

• August 31, 2021: The mayor issued Executive Order No. 78, stating city employees must either provide proof of vaccination or submit to weekly COVID testing.
• October 20, 2021: The Health Commissioner of New York City issued an order stating all city employees had to show proof of at least one COVID vaccination dose by 5:00 PM on October 29, 2021.
• December 13, 2021: The vaccine mandate was extended to include employees in the private sector.
• March 24, 2022: The mayor enacted Executive Order No. 62 which provided “blanket exemptions from the private employers’ vaccine mandate for athletes, performers, and other artists.” This is referred to as the private exemption order or Mayor’s exemption.

Executive Order No. 62 and Exemptions

The issuance of Executive Order No. 62 produced two identical groups of unvaccinated people being treated differently by the same agency. “There is nothing in the record to support the rationality of keeping a vaccination mandate for public employees, while vacating the mandate for private sector employees or creating a carveout for certain professions, like athletes, artists, and performers. This is clearly an arbitrary and capricious action.”

Fifteen of the sixteen petitioners applied for exemptions from the mandate and received “vague and generalized denials”.

As the exemptions were pending determination, the judge writes “there was no reason the petitioners could not submit to testing and continue their work as employees as stated in Executive Order No. 78”.

Vaccine Mandate Arbitrary and Capricious

The Court found the vaccine mandate for public and private employees to be “arbitrary and capricious” as there was nothing in the record to demonstrate the following:

• Why a vaccine mandate was issued only for public employees in October 2021?
• Why does the mandate stand today when the average rates of COVID at that time, October 2021, were under 1,500 per day which is significantly lower than the average rates today?
• Why exemptions were issued only for certain professions under Executive Order No. 62?
• Why employees were kept at full duty pending their months-long wait of exemption appeal?
• Why natural immunity was not accepted as a vaccine alternative?

“Based upon the Petitioners’ vague denials of their exemptions,

• the fact they were kept at full duty for several months while their exemptions were pending,
• the Mayor’s Executive Order granting exemptions to certain classes of people,
• and the lifting of the private sector mandate, this Court finds the Commissioner’s Orders of October 20, 2021, and December 13, 2021, as well as the Mayor’s Executive Order No. 62 to be arbitrary and capricious.”

Health Commissioner Acted Beyond His Authority

The Court acknowledges the Board of Health does have the power to regulate vaccines and adopt measures to reduce spread of infection but it does not have the power to “unilaterally and indefinitely change the terms of employment for any agency.” In doing so, it acted outside of its authority. The enforcement of the vaccine mandate was done so by separate orders for private and public workers; however, the mandate is being lifted on November 1, 2022, only for private employees.

The Court states there has never been such a vaccine mandate for employees and while the Court does not have a basis to disagree with a temporary vaccine order during a public health emergency, enforcing a mandate on only a portion of the population for an indefinite period of time is an act beyond the Health Commissioner’s authority.

Condition of Employment

The respondents argued the Commissioner can set a condition of employment, though the Court ruled this exceeds the scope of authority. The basis for the respondents’ argument is the petitioners work in sanitation which involves contact with hundreds of thousands of unvaccinated civilians which the Court rules “patently incorrect” as the work of the petitioners is primarily outdoors with limited public interaction. The Court states those hundreds of thousands of unvaccinated people are responsible for their own health and chose whether to be vaccinated or not just as the city employees should also have the right to make a choice for their own personal health.

The petitioners bargained for a contract with the city of New York which is in effect from January 2019 through December 2022 and makes “no mention of any vaccination as a condition of or prerequisite to employment.” The Court states a new condition of employment therefore cannot be imposed as the condition did not exist when they accepted the contract of employment.

Lastly, the Court states a state of emergency is meant to be temporary and the Health Commissioner acted beyond the scope of authority in enacting a permanent condition of employment.

Equal Protection Rights

Under New York Constitution, when a government action draws a distinction between different classes of people there must be a rational and reasonable explanation. The petitioners’ rights were violated by the mandate as they were treated entirely differently than private employees, and both city and private employees were treated differently than artists, athletes and performers.

There was no rational or reasonable explanation for the differed treatment. Granting exemptions only for certain classes, continuing mandates for some while lifting it for others, was disparate treatment. “Either there is a mandate for all, or there is a mandate for none.”

Being Vaccinated Does Not Prevent Contracting or Transmitting COVID-19

The Court also stated:

1. As of October 24, 2022, “CDC guidelines regarding isolation and quarantine for unvaccinated and vaccinated individuals are the same.”
2. The Court also states “being vaccinated does not prevent an individual from contracting or transmitting Covid-19.”
3. “Breakthrough cases occur among those who have been vaccinated and boosted.”
4. President Biden declared the pandemic is over. Referenced to CBS news.
5. Covid-19 state of emergency in New York ended in September 2022. Referenced to Hochul -NY state ends Covid emergency/encourages new booster-syracuse.com.
6. “The vaccination mandate for City employees was not just about safety and public health; it was about compliance. If it was about safety and public health, unvaccinated workers would have been placed on leave the moment the order was issued….the Health Commissioner would have issued city-wide mandates for vaccination for all residents. In a city with a nearly 80% vaccination rate, we shouldn’t be penalizing the people who showed up to work, at great risk to themselves and their families, while we were locked down.”

Conclusion

The Court ORDERED:

1. “The petition is granted”
2. “The Commissioner of Health and Mental Hygiene’s order dated October 20, 2021,
   a. violates the separation of powers doctrine…..
   b.violates the Petitioners’ equal protection rights..
   c. violates the Petitioners’ substantive and procedural due process rights….”
3. “The Commissioner of Health and Mental Hygiene’s order dated October 20, 2021, Is arbitrary and capricious.”
4. “The Commissioner of Health and Mental Hygiene’s order dated December 13, 2021, Is arbitrary and capricious.”
5. “The Mayor’s Executive Order No. 62 Is arbitrary and capricious.”
6. “The Commissioner lacks the power and authority to permanently exclude the Petitioners from their workplace.”
7. “The Petitioners claim for breach of contract is denied.”
8. “Terminated petitioners are hereby reinstated to their full employment status as of October 25, 2022, …and are entitled to back pay in salary from the date of termination.”

The vaccine mandate has now been defeated for all city employees, not just those in sanitation.

Have an awesome day. Dr D