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New York Mayor Eric Adams on Monday announced COVID-19 vaccines will no longer be mandatory for city employees, beginning Feb. 10.

The announcement came on the eve of tomorrow’s scheduled hearing in the 2nd U.S. Circuit Court of Appeals on multiple lawsuits — including two sponsored by Children’s Health Defense (CHD) — challenging the city’s near-blanket refusal of religious exemption requests to the mandate.

Commenting on the timing of the mayor’s news, Mary Holland, CHD president and general counsel, told The Defender:

“While we appreciate New York City’s announcement that it will drop its COVID-19 shot mandate for public employees as of Feb. 10, we are deeply concerned that the mayor’s timing in this announcement suggests that he is dropping it in anticipation of the 2nd Circuit Court of Appeals oral argument on Wednesday that will consider the constitutionality of the city’s religious exemption process.

“To the extent that the city may be trying to escape judicial oversight of its unlawful actions by asserting the case is now moot, I hope and trust that the 2nd Circuit will see through this ploy.

“COVID-19 is unlikely to be the last declared pandemic so nothing about what has happened is moot.”

According to the city’s announcement:

“The COVID-19 vaccine mandate for city workers has helped keep New Yorkers safe and New York City operations running throughout the pandemic.

“With the vast majority of city workers and New Yorkers vaccinated, and more tools readily available to protect people from serious illness, the vaccine requirement for the primary series of shots has served its purpose, driving rates of vaccination up among the city’s workforce during a critical period in the pandemic.”

Under the new policy, COVID-19 vaccination will become “optional” for city employees, including those of the New York City Department of Education (DOE). The mandate also will end for “nonpublic school, early child care, and daycare staff,” as well as visitors to DOE school buildings.

The new policy is pending ratification by the New York City Board of Health at its next meeting, scheduled for Feb. 9.

However, some legal analysts believe that this is a calculated attempt by the city government to sidestep pending legal cases challenging the city’s prior rejection of requests for religious exemptions to the vaccine mandate — including a scheduled hearing in the 2nd Circuit Court of Appeals tomorrow.

In an interview with The Defender, Sujata Gibson, one of the attorneys representing plaintiffs in today’s 2nd Circuit hearing, shared her insights about the city’s decision and the likelihood that it may impact this and other pending lawsuits that challenged the mandate and the rejection of religious exemption requests.

City: lawsuits now ‘moot’

In Adams’ announcement, he declared the city’s vaccine mandate a success:

“With more than 96 percent of city workers and more than 80 percent of New Yorkers having received their primary COVID-19 series and more tools readily available to keep us healthy, this is the right moment for this decision.

“I continue to urge every New Yorker to get vaccinated, get boosted, and take the necessary steps to protect themselves and those around them from COVID-19.”

Deputy Mayor for Health and Human Services Anne Williams-Isom said the mandate “yielded significant results,” while New York City Department of Health and Mental Hygiene Commissioner Dr. Ashwin Vasan said, “It’s clear these mandates saved lives and were absolutely necessary to meet the moment.”

“We’re grateful that we can now, as we leave the emergency phase of the pandemic, modify more of the rules that have gotten us to this point,” Vasan added.

None of these statements mentioned the upcoming 2nd Circuit hearing or any other pending cases against the city.

However, Gibson said the lawsuits likely were a factor in the city’s decision to rescind the mandate.

Gibson sold The Defender:

“The city’s announcement appears very strategic. The first thing the city did after announcing the end of the mandate was to write to the 2nd Circuit to let them know they paused the mandate.

“They are now arguing that this ‘moots’ the case. But we remain optimistic that the 2nd Circuit will not allow this type of gamesmanship.

“The city is arguing that the three federal cases are ‘moot’ because the city and DOE have now agreed to allow employees to reapply for their jobs. We disagree. The Supreme Court has repeatedly held that an eleventh-hour pause during litigation does not render the claims ‘moot’ — especially if, as is the case here, the government maintains the power to reinstate a mandate on a whim.

“Moreover, there are issues that have not been addressed, like damages and reinstatement.”

‘Widespread and shocking religious discrimination’

Several lawsuits challenging the city for refusing religious exemptions are in play, including Kane v. de Blasio, sponsored by CHD, CHD-NY and Teachers For Choice, and Keil v. The City of New York, represented by attorney Barry Black of Nelson Madden Black and sponsored by the organization Educators For Freedom.

These cases were combined with a third lawsuit to form a single case before the 2nd Circuit: New Yorkers for Religious Liberty, Inc. v. The City of New York — as they substantially deal with the same legal issues, said Gibson.

Gibson described the city’s mandate as an example of “widespread and shocking religious discrimination,” adding:

“First, they adopted a written policy that specifically calls for discrimination against Muslims, Jews and every other religion other than, essentially, Christian Scientists.

“Then, after we succeeded in our first appeal in getting that policy declared unconstitutional, they engaged in the same behavior on remand.”

Gibson said the pending legal cases raise constitutional questions:

“The documents we obtained in discovery show that they continued to literally engage in heresy inquisitions, rejecting people whose religious beliefs are derived from personal prayer rather than church orthodoxy that the city prefers.

“This is Constitutional Law 101 — all religious beliefs are protected, not just those that fit in with church orthodoxy or state-sanctioned religions. The fact that the city is trying so hard to moot the case now indicates that they realize that their legal arguments are weak.”

As The Defender reported in November 2021, every request for a religious exemption filed with the city was denied, and only 10% were granted on appeal.

This meant, at the time, that “approximately 1,350 New York City educators applied for a religious exemption, were initially denied, appealed and were denied on appeal. Some of those were allowed to have Zoom hearings in the appeal process, while others were flatly denied.”

According to Gibson, the city is “playing with people’s lives” — not by rescinding the vaccine mandate, but by not automatically reinstating those who were let go for not getting the vaccine.

She said:

“The mayor is playing with people’s lives here, but he is a day late and a dollar short. The end of the mandate does nothing to undo the serious damage that has been done.

“While the city dragged out this senseless mandate, thousands of workers saw their entire lives crumble around them. They lost their careers, they faced hunger and desperation, and many even lost their homes.”

Gibson cited the Jan. 27 decision by the city to rescind all the medical exemptions it previously granted. Gibson said this “sinister” move forced some unvaccinated DOE employees to get vaccinated, even though DOE likely knew of the forthcoming policy change.

Gibson told The Defender:

“A particularly sinister aspect of this timing is that just last week, the DOE rescinded all of the medical exemptions it previously granted, forcing vulnerable, disabled employees to submit to the vaccine against their treating doctors’ advice or face termination by Jan 27.

“One has to imagine the DOE knew that they were going to rescind the mandate a week later. To subject disabled employees to this kind of risk so senselessly is beyond inhuman.”

Gibson noted the city’s offer to allow those who were previously let go to reapply for their jobs is not enough.

“The city’s order does not reinstate anyone or make them whole for these losses, it just gives people a chance to reapply for employment,” Gibson said. “Employees can reapply for positions with the city or the DOE now without getting vaccinated.”

However, she said, “we do not know if the city has removed the black marks from their employment files, and there is no guarantee that anyone will be hired. Back pay, seniority, lost benefits and other damages are not available without further court action.”

Gibson said the city and DOE have to be held accountable for the “widespread discrimination” they carried out, and the “very real suffering and loss” they inflicted on their workforce.

“There are many others who went against medical advice or the dictates of their faith to keep their job,” said Gibson, “In addition to spiritual injury, there are people who sustained physical injuries from adverse reactions. No amount of money can ever make up for these harms.”

In a similar decision recently, the City of Los Angeles “ordered the approval of all religious and medical exemptions to the vaccine mandate that were filed by city employees as of Jan. 31,” according to the Los Angeles Times, which reported that roughly 4,900 employees will be affected by the change, including those whose requests were previously denied.

The city’s vaccine mandate for its employees remains in place, however.

Similar to New York City, a number of lawsuits challenging the refusal of religious and medical exemption requests are pending in Los Angeles. Legal experts who spoke to The Defender said it is likely that the City of Los Angeles is attempting to sidestep these legal challenges via its policy reversal.