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Calling it “arbitrary and capricious,” the New York State Supreme Court on Monday struck down New York City’s COVID-19 vaccine mandate for public workers, ruling in favor of 16 unvaccinated city workers who sued following their termination.
The lawsuit was filed July 20 by George Garvey and 15 other New York City Department of Sanitation employees who were fired by the city for non-compliance with the mandate.
Judge Ralph J. Porzio’s ruling is applicable not only to the 16 workers who sued but also to all public employees in New York City, including the police and fire department.
“So, we just defeated the vaccine mandate for every single city employee — not just sanitation,” stated attorney Chad LaVeglia, who represented the plaintiffs, following Judge Porzio’s ruling.
#BREAKING Judge Strikes Down NYC Vaccine Mandate for City Workers. “It’s null and void,” says attorney @ChadLaveglia. “We just defeated the vaccine mandate for every single city employee.” pic.twitter.com/PqqjhfNNCq
— NYCforYourself (@nycforyourself) October 24, 2022
In an interview with The Defender, New York-based attorney and activist Sujata Gibson, said:
“This decision is a huge victory for New York City employees. Attorney LaVeglia did a great job of articulating how arbitrary these mandates really are.
“While the case will doubtless be appealed, I believe this case and the other recent big victories in state and federal courts indicate that the dominoes are falling.”
Mandate deemed unconstitutional, in violation of principle of due process
In his ruling, Judge Porzio focused on the differential treatment afforded to certain classes of private sector employees compared to public sector employees and other private sector employees.
Judge Porzio said New York City Mayor Eric Adams “made a different decision for similarly situated people based on identical facts” when issuing Emergency Executive Order 62.
Adams’ executive order exempted athletes, artists and performers from the city’s vaccine mandate.
Judge Porzio described this distinction as “arbitrary and capricious,” writing in his decision:
“This is clearly an arbitrary and capricious action because we are dealing with identical unvaccinated people being treated differently by the same administrative agency.
“Granting exemptions for certain classes and selectively lifting [some] vaccination orders, while maintaining others, is simply the definition of disparate treatment. Furthermore, selective enforcement of these orders is also disparate treatment.”
Citing the New York State Constitution, Judge Porzio observed, “No person shall be denied the equal protection of the laws of this state or any subdivision thereof,” with the purpose of keeping “governmental decision-makers from treating differently persons who are in all relevant aspects alike.”
Judge Porzio also noted the state constitution states, “No person may be deprived of life, liberty, or property without the due process of the law.”
While he conceded that “vaccination mandates were enacted in the furtherance of a legitimate governmental purpose,” he also argued, “There must be a reasonable relation between the end sought to be achieved and the means used to achieve that end.”
“There is no rational reason for vaccination mandates to distinguish City workers, athletes, performers, and other private sector employees,” the judge wrote. “Either there is a mandate for all, or there is a mandate for none.”
‘States of emergency meant to be temporary’
Judge Porzio’s decision also addressed the legitimacy of New York City’s “state of emergency,” and its blanket rejection of the petitioners’ religious exemption requests.
According to the ruling, 15 of the 16 plaintiffs who applied for religious exemptions to the city’s mandate received “generalized and vague denials.”
“There was no reason why the City of New York could not continue with a vaccinate or test policy,” wrote Judge Porzio in his decision, stating that unvaccinated city employees who had submitted exemption requests could have been allowed to continue working under the condition of regular COVID-19 testing.
This is especially the case, the judge said, in light of the consideration that “states of emergency are meant to be temporary [emphasis original].”
Judge Porzio wrote:
“The question presented is whether the Health Commissioner has the authority to enact a permanent condition of employment during a state of emergency.
“This Court finds that the Commissioner does not have that authority and has acted beyond the scope of his authority under the Public Health Law and in violation of separation of powers.
“The Petitioners herein should not have been terminated for their failure to comply with the Commissioner’s Order during a temporary [emphasis original] state of emergency.”
The ruling further noted that under the collective bargaining agreement negotiated by the workers’ union — which went into effect on Jan. 20, 2019, and remains in effect until Dec. 27, 2022 — there was “absolutely no mention of any vaccination as a condition of or prerequisite to employment.”
Judge Porzio wrote:
“How can a ‘condition of employment’ be created during the term of employment? This Court believes that a new ‘condition of employment’ cannot be imposed upon these employees when the ‘condition’ did not exist when they accepted contracted employment.”
While Judge Porzio said that it is “clear that the Health Commissioner has the authority to issue public health mandates” and that “No one is refuting that authority,” he also said this authority does not include the creation of “a new condition of employment for City employees.”
Mandate ‘not about public safety’ but ‘about compliance’
New York City’s vaccine mandate for city employees was not just about safety and public health, “it was about compliance,” Judge Porzio said.
He wrote:
“If it was about safety and public health, unvaccinated workers would have been placed on leave the moment the order was issued. If it was about safety and public health, no one would be exempt. It is time for the City of New York to do what is right and what is just.”
The judge also questioned the logic of maintaining the vaccine mandate in light of recent developments at the state and federal level, and because the COVID-19 vaccines have been shown not to prevent infection or transmission of the virus.
“As of the day of this Decision, CDC guidelines regarding quarantine and isolation are the same for vaccinated and unvaccinated individuals,” he wrote.
Judge Porzio further stated:
“We have learned through the course of the pandemic that the vaccine against COVID-19 is not absolute. Breakthrough cases occur, even for those who have been vaccinated and boosted.
“President Joseph Biden has said that the pandemic is over. The State of New York ended the COVID-19 state of emergency over a month ago.”
The judge further recognized the workers who recovered from the virus and thus acquired “natural immunity” over the course of their employment, prior to their termination.
Describing the city’s mandate as “null and void,” LaVeglia stated:
“For all the brave men and women who have been our first responders and have been brave through all this are now free, and you should be able to go back to work.”
New York City appealing similar recent rulings
This decision is the latest in a recent string of rulings challenging New York City’s vaccine mandate for public employees that have gone against the city. However, in most of those cases, the city appealed.
In an Oct. 5 decision, Judge Porzio ruled New York City must reinstate a Staten Island firefighter, Timothy Rivicci, who also had his request for a religious exemption to the COVID-19 vaccine mandate denied without explanation.
Judge Porzio also ordered that back pay dating back to Nov. 5, 2021 — the date of Rivicci’s termination — and legal fees be awarded.
Three weeks after Porzio’s decision though, he has not received this financial compensation or been reinstated, leading Rivicci to request the city be held in contempt.
Rivicci’s home is in forbearance and at risk of foreclosure. His wife, who had been a schoolteacher in New York City, also lost her job after not getting the COVID-19 vaccine.
The city on Monday finally submitted an appeal against Judge Porzio’s decision, arguing that the religious accommodation decision by the city’s fire department and the citywide appeal panel was “rational and lawful,” adding that unvaccinated firefighters “can threaten the health and safety of fellow first responders and the public they closely interact with, including the most vulnerable.”
Separately, in an Oct. 21 Manhattan Supreme Court ruling, New York Police Department (NYPD) Officer Christopher Anderson was allowed to keep his job despite being unvaccinated.
Anderson sued the city Aug. 11, after his request for a religious exemption — and his appeal of that rejection — were denied without explanation.
The lack of explanation formed part of the basis of Judge Arlene Bluth’s decision.
“There is no indication that anybody even read [Anderson’s] arguments,” she wrote.
In anticipation of being fired and losing his legal challenge, Anderson sold his home one week prior to the decision. He continued his employment after initially receiving a restraining order Aug. 15 against the city’s decision to terminate him.
The same judge on Sept. 13 ruled that unvaccinated NYPD officer Alexander Deletto could keep his job. As with Anderson, he had requested a religious exemption that was denied by the city without explanation. The city appealed that ruling.
In a Sept. 23 ruling, Manhattan Supreme Court Justice Lyle Frank reinstated the jobs of several unvaccinated members of the NYPD’s union, the Police Benevolent Association of the City of New York. The city also appealed that decision.
Similarly to Judge Porzio’s Oct. 24 ruling, Frank ruled that a new condition of employment could not be imposed on city workers who were already employed under an existing collective bargaining agreement.
