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| A pedestrian walks past a sign next to the CSEA building on Monday, Aug. 15, 2011 in Albany, NY. Votes for their contract with the state were being counted at an undisclosed location on Monday. (Philip Kamrass / Times Union) |
CSEA filed petition seeking restraining order; hearing set for Oct. 1
CSEA files lawsuit to block New York vaccine mandatePetition is one of at least three that seek to halt mandate set to take effect Monday [September 27, 2021]
Brendan J. Lyons, Times Union, Sept. 23, 2021
ALBANY — The state Civil Service Employees Association has filed a petition on behalf of roughly 5,600 members who work in the state's court system seeking an injunction to halt the vaccine mandate that is scheduled to go into effect on Monday.
A similar petition was also filed in state Supreme Court in Albany this week on behalf of a group of Buffalo-area physicians, nurses and a nursing home administrator. Assemblyman David DiPietro, an Erie County Republican, is also listed as a plaintiff in that case.
The legal action is unfolding as Gov. Kathy Hochul's administration has not backed down from a mandate that was announced in July by former Gov. Andrew M. Cuomo. It requires a multitude of public-facing workers, mainly in hospitals, nursing homes and other long-term care facilities, to receive at least their first vaccination by Sept. 27 — and for others a deadline of Oct. 7 — or risk being suspended or terminated from their jobs.
The mandate affects both public and private health care facilities. Thousands of nurses and other medical professionals have declined to be vaccinated; officials with hospitals and group homes that care for the disabled said a staffing crisis that existed before the coronavirus pandemic will be exacerbated if many of those workers are off the job next week.
Many hospitals are reducing or eliminating elective surgeries and some are diverting patients to other hospitals to deal with the staffing issues.
Hochul's office on Wednesday did not answer questions about whether the governor might delay the mandate or has a plan in place if large numbers of nurses and other health care professionals are suspended from their jobs beginning Monday.
At a news conference Thursday morning, the governor said she "will be announcing a whole series of initiatives to be prepared for a situation on Monday that I hope doesn't happen.
"These are obviously very caring people or they obviously would not have chosen this profession," she said. "Every single person who ends up in your care has the right to know ... that there is no chance they will be infected by the person charged with protecting them and their health. ... Those who have done the right thing don't want to be with people who are not vaccinated ... they're entitled to a safe workplace as well."
Health care industry officials, including many private hospitals, are separately making plans for a potential staffing crisis.
“The science is clear, vaccines work, and we need as many people vaccinated as soon as possible. But this could turn out to be the paradox of the mandate,” Michael Balboni, executive director of the Greater New York Health Care Facilities Association, said in a statement issued Thursday morning. “We want to make staff and residents safer through vaccination, but if people start walking off the job and there aren’t enough workers to take care of residents, we actually put them in jeopardy.”
Balboni, who is not calling for the mandate to be rescinded or delayed, said his organization and industry administrators are calling for a staffing emergency plan, which may include mutual-aid requests, increased distribution of personal protective equipment, real-time monitoring by the state’s health department and increased testing.
Hochul's administration this week was locked in negotiations with multiple state labor unions, who have said the state's mandate should have been subject to collective bargaining and not simply imposed under a provision of state health law.
In the case filed by CSEA this week, they said the Public Employment Relations Board had determined the state Unified Court System's vaccination mandate for judges and nonjudicial employees "constitutes an improper practice" and authorized the union to file for a temporary injunction in state Supreme Court. CSEA is seeking a stay of the mandate until an administrative law judge issues a decision in their PERB case.
In the case filed on behalf of the Buffalo-area medical professionals, they assert that the U.S. Food and Drug Administration earlier this month reported a "1,000 percent increase" in adverse reactions to coronavirus vaccines at a meeting where it recommended against requiring booster shots for people under 65.
That petition also states the mandate does not provide exemptions for religious beliefs or for those "that were previously infected with COVID-19 and who have natural immunity."
Natural immunity "is at least as effective as vaccination at preventing future COVID-19 infections," the petition states, adding that a person who gets vaccinated to keep their job but suffers an adverse reaction "will be without any legal recourse for any such injuries or damages they suffer as a result of vaccination."
Late Wednesday, after the Times Union asked the governor's office for comment, it issued a statement saying that separate agreements with CSEA and the Public Employees Federation would allow nurses and other health care professionals at state-run hospitals to be eligible to work overtime at 2.5 times the normal rate of salary, up from 1.5 times. But that incentive, which would be retroactive to Sept. 16 and last through the end of the year, is not tied to the vaccine mandate.
Three people familiar with the negotiations between Hochul's administration and multiple labor unions said the incentive being offered by the administration is for affected health care employees to receive a half-day of vacation if they are vaccinated. That offer, however, is contingent on the unions agreeing that their members would not have contractual rights to use accrued time, such as sick or vacation days, to offset any lost hours while they are suspended.
None of the unions had agreed to the proposal by late Wednesday.
Even before the coronavirus pandemic, hospitals and other medical providers and long-term care facilities were facing a staffing crisis — including group homes for disabled individuals, where some nurses are being forced to work 24-hour shifts.
The state Department of Health estimated this week that about 81 percent of hospital employees have been fully vaccinated. The mandate set to take effect on Monday requires the workers to have at least one COVID-19 vaccination shot.
Last week, a federal judge in Utica issued an order temporarily restraining employers from enforcing the state vaccine mandate on health care workers who have sought a religious exemption.
The ruling by U.S. District Judge David N. Hurd was handed down in a case filed against Hochul, health Commissioner Dr. Howard Zucker — whose resignation was announced Thursday — and state Attorney General Letitia James on behalf of 17 medical professionals. It is scheduled to be argued next week.
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