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NYC Vax Mandate Declared Unlawful

Earlier this year a group of New York City sanitation workers filed in New York’s Richmond County Supreme Court a complaint alleging they were fired for refusing to get vaccinated and that the City’s vaccine mandate was arbitrary and capricious as it treated public sector workers differently than private sector workers. Last week, Judge Ralph Porzio agreed.

In fact, not only did the judge agree, but he went on to point out that the inequities between public and private sector workers were further exacerbated by Mayor Adams’ Executive Order of March 2022 whereby the City exempted certain professions from the vaccine orders altogether.  Judge Porzio wrote “This is clearly an arbitrary and capricious action because we are dealing with identical unvaccinated people being treated differently by the same administrative agency.”

The sanitation workers were fired in February 2022, for having failed to comply with the Health Commissioner’s city-wide vaccine mandate requiring all public employees to get vaccinated no later than October 29, 2021.  The Commissioner’s mandate was later extended to include private sector employees in December 2021.

Subsequently, Mayor Adams issued an Executive Order giving a blanket exemption under the private employers’ vaccine mandate to professional athletes, performers and other artists. The sanitation workers argued the Mayor’s Executive Order should nullify the enforcement of the vaccine mandate for public employees.  The judge agreed ruling the vaccine mandate was arbitrary and capricious as the Executive Order created a different set of standards for a different group of people with no legitimate reason.

The judge also questioned several other aspects of the mandates and related Executive Order including:

  • Why the mandate was initially only for public sector employees and only expanded several months later to cover private sector employees; and
  • Why the private sector mandate was set to be repealed November 1, 2022, and the public sector mandate had no end date (once again setting a different standard for different classes of workers).

Separation of Powers Doctrine

Finally, the judge also found that by unilaterally instituting the mandate, the City had indefinitely altered the terms of employment of the City’s public workers in violation of the separation of powers doctrine.  Judge Porzio wrote, “This court does not have a basis to disagree with temporary vaccination orders during a public health emergency, however, ordering and enforcing that vaccination policy on only a portion of the populace for an indefinite period of time, is akin to legislating.”  The judge further contended the City had inappropriately taken the power of the legislature when it issued the indefinite vaccination order, and as a result the Health Commissioner had acted beyond his authority.

In his ruling Judge Porzio ordered that the complainants be reinstated with back pay. The City is planning to appeal the decision. 

It is important for employers to note, the vaccine mandates were not overturned as the judge’s order did not explicitly call for their repeal and his ruling solely pertains to the individual petitioners in this case.  However, the judge’s ruling effectively ends the vaccine mandate for all public sector workers who were subject to the October 20, 2021, and December 31, 2021, orders by the City’s Health Commissioner.

Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560