New York State Governor Kathy Hochul says she will not bend on her statewide mandate for all teachers to get a COVID vaccination no later than 5pm Friday, October 1, 2021.
A group of teachers who lost at State Supreme and Appeals Courts has asked U.S. Supreme Court Justice Sonia Sotomayor for an emergency order blocking the city's mandate today, before the end of the day.
Betsy Combier
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News4 NY September 30, 2021
As of Monday, Mayor Bill de Blasio said 87% of all city Department of Education employees are vaccinated, including 90% of teachers and 97% of principals.
A group of New York City teachers has asked the U.S. Supreme Court for an emergency order blocking the city's vaccine mandate from going into effect Friday.
The petition asks Justice Sonia Sotomayor, who is the circuit justice for this part of the country, to issue an emergency injunction blocking the mandate, which they claim would force thousands of public school employees out of work if it were to remain in place.
"In attempting to combat the COVID-19 virus, the City of New York, the
Department of Education, and the Department of Health and Mental Hygiene created an Executive Order that places an unconstitutional burden on public-school teachers," lawyers for the teachers wrote in their 12-page petition.
The state's order would violate a teacher's fundamental right to pursue an occupation, the lawyers told the court, and teachers who fail to get the vaccine will never be able to return to work. They added that the order is unfair because it does not apply to other city employees, including firefighters and police officers, who routinely deal with the public. Teachers, by contrast, "maintain close indoor contact with children, who are dramatically less susceptible to illness from COVID."
Other municipal workers are allowed to keep working if they submit to weekly COVID testing in lieu of getting the vaccine, lawyers stated.
Justice Sotomayor will likely seek a reply from the city before acting on the case, and is likely to refer it to the full court for a decision.
New York City Mayor Bill de Blasio has said he is confident courts will uphold the city's efforts to exclude unvaccinated staff from school buildings, where they might infect co-workers or children too young to get the shots.
Earlier this week, federal judges ruled in the city's favor and dissolved a temporary block that kept the city's vaccine mandate on ice.
The 2nd U.S. Circuit Court of Appeals in Manhattan issued its ruling Monday evening, in a move that shocked many, dissolving last Friday's injunction and denying the original motion.
After an adverse ruling from a Brooklyn judge, a group of teachers had brought the case to the appeals court, which assigned the three-judge panel to hear oral arguments. But the appeals panel issued its order after written arguments were submitted by both sides.
Mayor Bill de Blasio has said the vaccine mandate will go into effect on Monday, Oct. 4 — meaning that all school employees have until the end of day on Friday to get the necessary vaccination, if they haven't done so already.
The city's DOE cheered the judges' ruling.
"Vaccinations are our strongest tool in the fight against COVID-19 — this ruling is on the right side of the law and will protect our students and staff," said DOE spokeswoman Danielle Filson.
But the city's largest teachers union wasn't so quick to celebrate the new developments. In a statement, the United Federation of Teachers said that while the city's estimates had 97 percent of teachers being vaccinated, a recent union survey showed "only about one-third (of UFT chapter leaders) believe that as of now their schools can open without disruption, given the potential shortage of unvaccinated personnel.
"The city has a lot of work before it to ensure that enough vaccinated staff will be available by the new deadline," the statement from UFT President Michael Mulgrew read. "We will be working without members to ensure, as far as possible, that our schools can open safely as the vaccine mandate is enforced."
The previous block to the mandate had prompted the mayor to reimplement the policy weekly testing for staff who do not produce proof of vaccination.
As of Monday, de Blasio said 87 percent of all DOE personnel are at least partially vaccinated, including 90 percent of teachers and 97 percent of principals. The UFT said 97 percent of its members are at least partially vaccinated as well.
An attorney representing Department of Education employees says opponents of the mayor's school mandate just want a weekly test option scribed into the rule for those who, for whatever reason, do not want to be inoculated against COVID.
"Quite many of them are not anti-vaccination. They're anti-mandate," attorney Louis Gelormino said of city education workers who oppose de Blasio's shot requirement. "Think the true thing that united them all is that they're the only municipal workers in New York City that are being forced to get this vaccination and they're the only school teachers in New York state that are being forced to get this vaccination."
Lawyers for teachers argued Monday in papers submitted to the 2nd Circuit that teachers who are placed on unpaid leave because they have not complied with the order will be irreparably harmed if the appeals court failed to block the mandate.
The lawyers wrote that the city's order will “leave teachers and paraprofessionals without the resources to pay rent, utilities, and other essentials. The harm is imminent.”
They said the mandate would leave thousands of New York City children in the nation's largest school district without their teachers and other school workers.
“Imminent and irreparable harm exists,” the lawyers insisted.
Even though most school workers have been vaccinated, unions representing New York City principals and teachers warned the 1 million-student school system could be short as many as 10,000 teachers, along with other staffers, if the mandate forces some away from the classroom.
Mayor de Blasio had previously resisted calls to delay implementing the mandate, insisting the city was ready. He has also said the city has an army of fully vaccinated substitutes ready to deploy should there be any concern about adequate staffing in its schools. Following Monday's last-minute ruling, it wasn't immediately clear if the city would still implement the mandate according to schedule.
“We’ve been planning all along. We have a lot of substitutes ready,” the Democrat said in a radio interview last week.
In an email to staff over the weekend, NYC Schools Chancellor Meisha Porter had advised schools to prepare for the possibility the vaccine mandate taking effect this week, guidance which would later prove wise given the judges' ruling Monday. The mayor had also said he believed the mandate would prevail, citing a recent failed effort in federal court to block Key to NYC, the city's rule requiring patrons of restaurants, gyms, theaters and other venues to provide proof of vaccination prior to entering businesses, as fuel for his argument.
A judge issued a temporary and partial injunction Thursday against New York Gov. Kathy Hochul's vaccine mandate for health care workers, court documents stated, just days after it initially went into effect.
The temporary restraining order was issued after a lawyer for three health care workers — two nurses from Syosset Hospital on Long Island, and a third from Syracuse — said in a lawsuit that the order violated the employees' religious rights. The decision from the panel of three judges grants workers an exemption based on religious grounds, the ruling by the second circuit court of appeals in Manhattan stated.
The law firm representing the nurses cheered the decision by the court, saying "the Second Circuit got it right. New York got it all wrong.
"There is no public health exemption to the Bill of Rights. Governor Hochul demonstrated breathtaking arrogance this week when she told New Yorkers God wanted them to be vaccinated," the statement from the law firm continued. "We shudder to think that New York has a Governor who believes she has a direct pipeline to God. The Bill of Rights was enacted to ensure that sort of nonsense remains stillborn in the American Republic."
The panel set a hearing for Oct. 14, which in effect puts the order on hold until that date. A similar hold had been put into effect by a separate judge in Upstate New York until Oct. 12.
The trio's lawyer, Cameron Atkinson, said in a post on his website that one of his clients who was part of the lawsuit had been fired by Northwell Health — something but she is far from alone in losing her job over the vaccination fight.
A spokesperson for Northwell Health said in a statement earlier in the week that they regret "losing any employee under such circumstances, but as health care professionals and members of the largest health care provider in the state, we understand our unique responsibility to protect the health of our patients and each other. We owe it to our staff, our patients and the communities we serve to be 100% vaccinated against COVID-19."
The ruling came after thousands of healthcare workers in New York faced getting vaccinated against COVID-19 or losing their jobs. While the vast majority had already received as Hochul's statewide mandate neared, or got it just before the deadline, hundreds of workers were suspended or fired at hospitals around New York.
Healthcare facilities on Tuesday reported suspensions of unvaccinated employees, and some had scaled back services in anticipation of fewer workers. But they largely appeared to avoid dire staffing shortages so far, according to industry administrators and representatives.
"Right now, services, by and large, are not affected and they remain to be the high-quality level that we have come to expect from our New York hospitals," said Kenneth E. Raske, president of The Greater New York Hospital Association, which represents 140 hospitals and health systems around New York.
Raske said a "substantial influx" of workers received a shot in the last day.
The terminations associated with Hochul's order had already occurred in a number of hospital systms. New York-Presbyterian said its vaccination deadline took effect at 11:59 p.m. on Sept. 22. More than 99% of the system's 48,000 team members got vaccinated in time.
Fewer than 250 chose not to comply and no longer work at New York-Presbyterian, hospital officials said Tuesday. Another hospital system, Northwell Health, said a day ago it had fired about two dozen who refused to get vaccinated.
NYC Health + Hospitals, which runs 11 public hospitals across the five boroughs, is taking a bit of a different approach at least to start. Employees who haven't yet been vaccinated have been put on unpaid leave rather than lose their jobs and will be able to return to work once they're in compliance with the mandate, officials said.
More on Vaccine Mandates
To date, more than 91% of NYC Health + Hospital workers are in compliance with the state vaccine mandate, according to President and CEO Dr. Mitchell Katz, who said they brought in 500 nurses to fill in for nurses who were not on the job after the mandate kicked in. Katz added that both public and private hospitals in the city were fully operational.
“We anticipated that there would be some loss of staff. We knew that no matter what our efforts, some people were not going to get vaccinated, and we planned appropriately,” he said.
“We are thankful to our workforce for their commitment to supporting a safe health care environment in our facilities by getting their COVID-19 vaccine and complying with the state’s mandate," a spokesperson said Tuesday. "We are committed to offering high-quality, comprehensive health care to the more than 1.4 million New Yorkers who rely on our services. All of our hospitals and community health clinics are open for care without interruption."
Healthcare facilities have prepared for mandate-related staff reductions by reducing services like elective surgeries, shifting staff and limiting admissions. People were working overtime at hospitals and nursing homes and some facilities were using staffing agencies to help provide vaccinated workers.
Shot rates are expected to keep seeing a boost. Hochul released figures late Monday showing vaccination rates rising among the state's 450,000 hospital workers and for other healthcare workers. The figures were released as she signed an executive order providing her with expanded powers to alleviate staff shortages.
By Monday evening, 92% of nursing home staff received at least one vaccine dose, up from 82% a week earlier. The percentage of fully vaccinated staff was 85% Monday evening, up a percentage point from Wednesday, according to Hochul.
One nursing home industry representative said employers are reluctant to terminate workers when they are so badly needed.
“Many providers are giving them an unpaid leave of absence just because there’s such a workforce crisis that the providers don’t want to sever that relationship,” said Stephen Hanse, who represents nursing homes statewide as president of the New York State Health Facilities Association and the New York State Center for Assisted Living.
Preliminary data showed 92% of hospital staff had also received at least one dose of vaccine, the governor said.
As of the latest update, state figures show at least 84% of hospital workers are fully vaccinated.
The executive order allows out-of-state doctors, nurses and other medical professionals to practice in New York, makes it easier for retirees to return to the workforce and allows physician visits in nursing homes to be done by telemedicine.
Also, New York state-licensed providers without current registrations will be able to practice without penalty. And the order broadens the roles of emergency medical technicians, such as allowing basic EMTs to vaccinate and test for COVID-19.
Bea Grause, president of the Healthcare Association of New York State, said the executive order could help hospitals, but that it's still a challenging time.
“Hospitals are not out of the woods yet because that underlying problem is the workforce shortage,” said Grause, whose organization represents more than 200 hospitals and healthcare systems.
Meanwhile, New York City's vaccination mandate for Department of Education employees that had been set to begin Monday has been allowed to proceed effective Oct. 4 after federal judges dissolved a temporary block late Monday.
A group of New York City teachers has asked the U.S. Supreme Court for an emergency order blocking the city's vaccine mandate from going into effect Friday.
The petition asks Justice Sonia Sotomayor, who is the circuit justice for this part of the country, to issue an emergency injunction blocking the mandate, which they claim would force thousands of public school employees out of work if it were to remain in place.
"In attempting to combat the COVID-19 virus, the City of New York, the
Department of Education, and the Department of Health and Mental Hygiene created an Executive Order that places an unconstitutional burden on public-school teachers," lawyers for the teachers wrote in their 12-page petition.
The state's order would violate a teacher's fundamental right to pursue an occupation, the lawyers told the court, and teachers who fail to get the vaccine will never be able to return to work. They added that the order is unfair because it does not apply to other city employees, including firefighters and police officers, who routinely deal with the public. Teachers, by contrast, "maintain close indoor contact with children, who are dramatically less susceptible to illness from COVID."
Other municipal workers are allowed to keep working if they submit to weekly COVID testing in lieu of getting the vaccine, lawyers stated.
Justice Sotomayor will likely seek a reply from the city before acting on the case, and is likely to refer it to the full court for a decision.
New York City Mayor Bill de Blasio has said he is confident courts will uphold the city's efforts to exclude unvaccinated staff from school buildings, where they might infect co-workers or children too young to get the shots.
Earlier this week, federal judges ruled in the city's favor and dissolved a temporary block that kept the city's vaccine mandate on ice.
The 2nd U.S. Circuit Court of Appeals in Manhattan issued its ruling Monday evening, in a move that shocked many, dissolving last Friday's injunction and denying the original motion.
After an adverse ruling from a Brooklyn judge, a group of teachers had brought the case to the appeals court, which assigned the three-judge panel to hear oral arguments. But the appeals panel issued its order after written arguments were submitted by both sides.
Mayor Bill de Blasio has said the vaccine mandate will go into effect on Monday, Oct. 4 — meaning that all school employees have until the end of day on Friday to get the necessary vaccination, if they haven't done so already.
The city's DOE cheered the judges' ruling.
"Vaccinations are our strongest tool in the fight against COVID-19 — this ruling is on the right side of the law and will protect our students and staff," said DOE spokeswoman Danielle Filson.
But the city's largest teachers union wasn't so quick to celebrate the new developments. In a statement, the United Federation of Teachers said that while the city's estimates had 97 percent of teachers being vaccinated, a recent union survey showed "only about one-third (of UFT chapter leaders) believe that as of now their schools can open without disruption, given the potential shortage of unvaccinated personnel.
"The city has a lot of work before it to ensure that enough vaccinated staff will be available by the new deadline," the statement from UFT President Michael Mulgrew read. "We will be working without members to ensure, as far as possible, that our schools can open safely as the vaccine mandate is enforced."
The previous block to the mandate had prompted the mayor to reimplement the policy weekly testing for staff who do not produce proof of vaccination.
As of Monday, de Blasio said 87 percent of all DOE personnel are at least partially vaccinated, including 90 percent of teachers and 97 percent of principals. The UFT said 97 percent of its members are at least partially vaccinated as well.
An attorney representing Department of Education employees says opponents of the mayor's school mandate just want a weekly test option scribed into the rule for those who, for whatever reason, do not want to be inoculated against COVID.
"Quite many of them are not anti-vaccination. They're anti-mandate," attorney Louis Gelormino said of city education workers who oppose de Blasio's shot requirement. "Think the true thing that united them all is that they're the only municipal workers in New York City that are being forced to get this vaccination and they're the only school teachers in New York state that are being forced to get this vaccination."
Lawyers for teachers argued Monday in papers submitted to the 2nd Circuit that teachers who are placed on unpaid leave because they have not complied with the order will be irreparably harmed if the appeals court failed to block the mandate.
The lawyers wrote that the city's order will “leave teachers and paraprofessionals without the resources to pay rent, utilities, and other essentials. The harm is imminent.”
They said the mandate would leave thousands of New York City children in the nation's largest school district without their teachers and other school workers.
“Imminent and irreparable harm exists,” the lawyers insisted.
Even though most school workers have been vaccinated, unions representing New York City principals and teachers warned the 1 million-student school system could be short as many as 10,000 teachers, along with other staffers, if the mandate forces some away from the classroom.
Mayor de Blasio had previously resisted calls to delay implementing the mandate, insisting the city was ready. He has also said the city has an army of fully vaccinated substitutes ready to deploy should there be any concern about adequate staffing in its schools. Following Monday's last-minute ruling, it wasn't immediately clear if the city would still implement the mandate according to schedule.
“We’ve been planning all along. We have a lot of substitutes ready,” the Democrat said in a radio interview last week.
In an email to staff over the weekend, NYC Schools Chancellor Meisha Porter had advised schools to prepare for the possibility the vaccine mandate taking effect this week, guidance which would later prove wise given the judges' ruling Monday. The mayor had also said he believed the mandate would prevail, citing a recent failed effort in federal court to block Key to NYC, the city's rule requiring patrons of restaurants, gyms, theaters and other venues to provide proof of vaccination prior to entering businesses, as fuel for his argument.
NY Vaccine Mandate Temporarily Blocked for Health Workers Claiming Religious Exemption
By Monday evening, 92% of nursing home staff received at least one vaccine dose. And preliminary data showed 92% of hospital staff receiving at least one dose of vaccine, Gov. Kathy Hochul said
A judge issued a temporary and partial injunction Thursday against New York Gov. Kathy Hochul's vaccine mandate for health care workers, court documents stated, just days after it initially went into effect.
The temporary restraining order was issued after a lawyer for three health care workers — two nurses from Syosset Hospital on Long Island, and a third from Syracuse — said in a lawsuit that the order violated the employees' religious rights. The decision from the panel of three judges grants workers an exemption based on religious grounds, the ruling by the second circuit court of appeals in Manhattan stated.
The law firm representing the nurses cheered the decision by the court, saying "the Second Circuit got it right. New York got it all wrong.
"There is no public health exemption to the Bill of Rights. Governor Hochul demonstrated breathtaking arrogance this week when she told New Yorkers God wanted them to be vaccinated," the statement from the law firm continued. "We shudder to think that New York has a Governor who believes she has a direct pipeline to God. The Bill of Rights was enacted to ensure that sort of nonsense remains stillborn in the American Republic."
The panel set a hearing for Oct. 14, which in effect puts the order on hold until that date. A similar hold had been put into effect by a separate judge in Upstate New York until Oct. 12.
The trio's lawyer, Cameron Atkinson, said in a post on his website that one of his clients who was part of the lawsuit had been fired by Northwell Health — something but she is far from alone in losing her job over the vaccination fight.
A spokesperson for Northwell Health said in a statement earlier in the week that they regret "losing any employee under such circumstances, but as health care professionals and members of the largest health care provider in the state, we understand our unique responsibility to protect the health of our patients and each other. We owe it to our staff, our patients and the communities we serve to be 100% vaccinated against COVID-19."
The ruling came after thousands of healthcare workers in New York faced getting vaccinated against COVID-19 or losing their jobs. While the vast majority had already received as Hochul's statewide mandate neared, or got it just before the deadline, hundreds of workers were suspended or fired at hospitals around New York.
Healthcare facilities on Tuesday reported suspensions of unvaccinated employees, and some had scaled back services in anticipation of fewer workers. But they largely appeared to avoid dire staffing shortages so far, according to industry administrators and representatives.
"Right now, services, by and large, are not affected and they remain to be the high-quality level that we have come to expect from our New York hospitals," said Kenneth E. Raske, president of The Greater New York Hospital Association, which represents 140 hospitals and health systems around New York.
Raske said a "substantial influx" of workers received a shot in the last day.
The terminations associated with Hochul's order had already occurred in a number of hospital systms. New York-Presbyterian said its vaccination deadline took effect at 11:59 p.m. on Sept. 22. More than 99% of the system's 48,000 team members got vaccinated in time.
Fewer than 250 chose not to comply and no longer work at New York-Presbyterian, hospital officials said Tuesday. Another hospital system, Northwell Health, said a day ago it had fired about two dozen who refused to get vaccinated.
NYC Health + Hospitals, which runs 11 public hospitals across the five boroughs, is taking a bit of a different approach at least to start. Employees who haven't yet been vaccinated have been put on unpaid leave rather than lose their jobs and will be able to return to work once they're in compliance with the mandate, officials said.
More on Vaccine Mandates
To date, more than 91% of NYC Health + Hospital workers are in compliance with the state vaccine mandate, according to President and CEO Dr. Mitchell Katz, who said they brought in 500 nurses to fill in for nurses who were not on the job after the mandate kicked in. Katz added that both public and private hospitals in the city were fully operational.
“We anticipated that there would be some loss of staff. We knew that no matter what our efforts, some people were not going to get vaccinated, and we planned appropriately,” he said.
“We are thankful to our workforce for their commitment to supporting a safe health care environment in our facilities by getting their COVID-19 vaccine and complying with the state’s mandate," a spokesperson said Tuesday. "We are committed to offering high-quality, comprehensive health care to the more than 1.4 million New Yorkers who rely on our services. All of our hospitals and community health clinics are open for care without interruption."
Healthcare facilities have prepared for mandate-related staff reductions by reducing services like elective surgeries, shifting staff and limiting admissions. People were working overtime at hospitals and nursing homes and some facilities were using staffing agencies to help provide vaccinated workers.
Shot rates are expected to keep seeing a boost. Hochul released figures late Monday showing vaccination rates rising among the state's 450,000 hospital workers and for other healthcare workers. The figures were released as she signed an executive order providing her with expanded powers to alleviate staff shortages.
By Monday evening, 92% of nursing home staff received at least one vaccine dose, up from 82% a week earlier. The percentage of fully vaccinated staff was 85% Monday evening, up a percentage point from Wednesday, according to Hochul.
One nursing home industry representative said employers are reluctant to terminate workers when they are so badly needed.
“Many providers are giving them an unpaid leave of absence just because there’s such a workforce crisis that the providers don’t want to sever that relationship,” said Stephen Hanse, who represents nursing homes statewide as president of the New York State Health Facilities Association and the New York State Center for Assisted Living.
Preliminary data showed 92% of hospital staff had also received at least one dose of vaccine, the governor said.
As of the latest update, state figures show at least 84% of hospital workers are fully vaccinated.
The executive order allows out-of-state doctors, nurses and other medical professionals to practice in New York, makes it easier for retirees to return to the workforce and allows physician visits in nursing homes to be done by telemedicine.
Also, New York state-licensed providers without current registrations will be able to practice without penalty. And the order broadens the roles of emergency medical technicians, such as allowing basic EMTs to vaccinate and test for COVID-19.
Bea Grause, president of the Healthcare Association of New York State, said the executive order could help hospitals, but that it's still a challenging time.
“Hospitals are not out of the woods yet because that underlying problem is the workforce shortage,” said Grause, whose organization represents more than 200 hospitals and healthcare systems.
Meanwhile, New York City's vaccination mandate for Department of Education employees that had been set to begin Monday has been allowed to proceed effective Oct. 4 after federal judges dissolved a temporary block late Monday.
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