A New York State Supreme Court judge has ordered New York City to reinstate all employees fired because of refusal to take the COVID-19 vaccine and to pay backpay as restitution.
On October 20, 2021, New York City Health Commissioner David Chokshi issued an order that gave all city employees nine days to be vaccinated or face termination. On December 31, this order was extended to all people working in NYC under a “private employee vaccine mandate.” The plaintiffs, in this case, were all city employees and applied for an exception to the mandate. The exceptions were declined, and they were terminated.
The critical issue, in this case, was
Fuehrerbefehl Executive Order 62 issued by NYC Mayor Eric Adams, which provided extensive exemptions to all manner of people.
“Covered worker” does not include:
(i) an individual who works from their own home and whose employment does not involve interacting in-person with co-workers or members of the public;
(ii) an individual who enters the workplace for a quick and limited purpose;
(iii) a performing artist, or an individual accompanying such performing artist, while the performing artist is in a covered premises for the purpose of such artist’s performance; or
(iv) a professional athlete, or an individual accompanying such professional athlete or such athlete’s sports team, who enters a covered premises as part of their regular employment.
The judge stopped just short of lighting Mayor Adams on fire and chasing him down the street.
“Though vaccination should be encouraged, public employees should not have been terminated for their noncompliance,” the court stated.“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 Commissioners Orders of October 20, 2021, and December 13, 2021, as well as the Mayor’s Executive Order No. 62 to be arbitrary and capricious,” the court ruled.
The petitioners of the suit are former Department of Sanitation employees that were terminated from their positions in February 2022.
The petitioners argued that Adam’s Executive Order No. 62, which provided exemptions for athletes, performers, and other artists, “rendered the public employee vaccination mandate arbitrary and capricious or unconstitutional.”
In regards to this order, the court said, “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 because we are dealing with identical unvaccinated people being treated differently by the same administrative agency,” the court added.
The court did not argue against issuing temporary vaccination mandates in a public health emergency, but added, “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 court also stated, “being vaccinated does not prevent an individual from contracting or transmitting Covid-19. As of the day of this Decision, CDC guidelines regarding quarantine and isolation are the same for vaccinated and unvaccinated individuals.”
“The Petitioners should not have been terminated for choosing not to protect themselves.
In my view, the significance of this decision is that the judge depoliticized the case by acknowledging the authority of NYC to impose a vaccine mandate but pointing out that it elected to create massive carve-outs to enforcement that made the vaccine mandate arbitrary in its application.
While all victories over tyranny should be celebrated, this is just a small first step. The “Supreme Court” in New York is approximately comparable to a federal district court. The City has appealed the decision, which places it on hold while the appeal is being considered.