Miss a day, miss a lot. Subscribe to The Defender's Top News of the Day. It's free.
A January ruling by the New York State Supreme Court that struck down the state’s COVID-19 vaccine mandate for healthcare workers will stand, after the Supreme Court Appellate Division, Fourth Department, late last week dismissed an appeal by the state.
“The appeal is dismissed, the mandate is over and Judge [Gerard J.] Neri’s decision stands,” said Sujata Gibson, attorney for the plaintiffs. “This was an important victory. While it does not make healthcare workers whole, it does protect us from future overreach by the executive branch.”
The state Supreme Court on Jan. 13 declared New York’s COVID-19 vaccine mandate for healthcare workers “null, void, and of no effect,” and ruled that the New York State Department of Health (NYSDOH) lacked the authority to impose the mandate.
The ruling pertained to a lawsuit filed on Oct. 20, 2022, against the NYSDOH, Gov. Kathleen C. Hochul and health commissioner Mary T. Bassett, by Medical Professionals for Informed Consent — a group of medical practitioners impacted by the mandate — and additional plaintiffs, including two doctors, a nurse, a radiologic technologist and a medical laboratory specialist. Children’s Health Defense (CHD) funded the lawsuit.
On Jan. 24, the state appealed the Supreme Court’s ruling that overturned the mandate. However, before the appeals court ruled, Jonathan Hitsous, attorney for the New York State Attorney General’s office, announced unexpectedly during a May hearing that the state planned to rescind the mandate.
Hitsous argued that the repeal would render the original lawsuit “moot” — meaning the rights and interests of the parties involved would no longer be at stake — and he requested that the lower court’s Jan. 13 decision striking down the mandate be vacated.
CHD and Gibson opposed the move in a joint statement, arguing that vacating the lower court’s decision would “leave open the very real possibility that this constitutional violation could happen again and ruin many more lives.”
“The law does not allow an agency to voluntarily stop an illegal activity and then claim they shouldn’t be held legally accountable,” Gibson told CHD.TV at the time.
Since then, New York formally repealed the mandate through the administrative process. In its ruling issued last week, the court held that the repeal “moots” the state’s appeal, but it declined to vacate the lower court’s decision or to take any position on it.
CHD President Mary Holland told The Defender:
“Victory! The good news is that this means that the lower court’s decision stands as the law in New York, holding, among other things, that it is irrational and illegitimate to mandate a vaccine that cannot stop transmission, particularly if the stated purpose is to stop the spread of the disease.
“This precedent will serve us in the future if businesses or government consider new vaccine mandates.
“Kudos to the plaintiffs who fought against this injustice, to Sujata Gibson, their tireless counsel, and to all CHD’s generous donors who made this victory possible.”
Michael Kane, member of Teachers For Choice, which recently won job reinstatement and back pay for 10 teachers fired over New York City’s vaccine mandates for schools in a case now on appeal in the New York State Supreme Court, told The Defender:
“This is huge. This might be the biggest New York victory yet, and while there might be a slim chance the state could appeal, it’s very slim. That means this is the law now in New York — the governor cannot issue a vaccine mandate.
“We’re not waiting for appeals or decisions or motions. We’re not waiting for anything. This is now law of the land in New York, which is amazing.”
COVID vaccine mandate for healthcare workers ‘null, void, and of no effect’
New York’s COVID-19 mandate for healthcare workers took effect in September 2021, prompting 34,000 medical workers, or 3% of the workforce at the time, to quit or be fired instead of getting the shots.
Then-Gov. Andrew Cuomo first announced the mandate on Aug. 16, 2021, and the NYSDOH adopted it as a permanent rule under Gov. Hochul on June 22, 2022, even though New York ended its COVID-19 state of emergency on June 24, 2021.
Medical Professionals for Informed Consent et al.’s lawsuit alleged the plaintiffs had lost — or were at imminent risk of losing — their jobs due to the mandate, and that several of them had religious objections to receiving the vaccine, but the mandate did not recognize those exemptions.
The plaintiffs also questioned several aspects of the legality of the mandate.
In a groundbreaking ruling on Jan. 13, the New York State Supreme Court struck down the mandate and also ruled that the state’s mandate was “arbitrary and capricious” on the basis that COVID-19 vaccines do not stop transmission of the virus, thereby eliminating any rational basis for such a policy.
When NYSDOH, Hochul and Bassett appealed the ruling less than two weeks later, the court issued a temporary stay against the initial ruling. The stay reinstated the mandate, which affected an estimated 34,000 healthcare workers.
The Governor’s request for a stay came amid New York’s statewide healthcare worker staffing crisis, which had reduced the number of hospital beds, forced upstate hospitals to turn away thousands of sick patients and suspended critical patient surgeries, while thousands of unvaccinated healthcare workers suffered unemployment and extreme financial hardship.
When possible, many relocated to other states to seek jobs.
The case proceeded through the appeals process, and at a hearing, just minutes before oral arguments were to begin before New York’s Supreme Court Appellate Division in Rochester, Hitsous announced the state’s intention to repeal the mandate — a process that he conceded would take several months — and requested the lower court’s decision be overturned.
Despite the announcement by the Attorney General in the courtroom, many New York Hospitals continued to enforce the mandate, until Gibson filed a motion on June 8 asking the court to lift the stay and either consider the case on its merits or end the appeal of the original decision.
When the mandate was finally repealed through the regulatory process on Oct. 4, the state indicated it may “continue to seek sanctions against providers based on previously cited violations that allegedly occurred.”
“The fact that the appellate court declined to vacate the lower court’s order provides protection against the state’s continued effort to punish unvaccinated healthcare workers,” Gibson said. “Unlike the ‘repeal’ the court order is retroactive, declaring the mandate unconstitutional from its inception.”
Margaret Florini, spokesperson for Medical Professionals for Informed Consent, told The Defender:
“Everyone who has been fired should immediately be applying for their jobs back or for new positions if theirs have been filled.
“The fact that the court rejected this petition is tremendous and speaks volumes. We won and now our win will set precedent in the future as it did for other cases like the nurse at Roswell Park Comprehensive Cancer Center.
“This is just the beginning. I think we will see many new lawsuits come about because of this historic win. There is still plenty of work to be done. We lost so much, not just money but relationships, marriages, friends, and homes. We cannot forget what was done to us and we must continue to shed light on it and make impactful changes that will truly prevent this from happening again.”
