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Thursday, September 23, 2021

Civil Service Employees Association (CSEA) Files Court Petition To Halt State Vaccine Mandate


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)

UPDATE September 24, 2021

CSEA filed petition seeking restraining order; hearing set for Oct. 1

CSEA files lawsuit to block New York vaccine mandate

Petition is one of at least three that seek to halt mandate set to take effect Monday [September 27, 2021]

, 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.

City and State Mandates For Employees To Get the COVID Vaccination Goes Forward

There are three branches of government in the U.S.:

  • The executive branch, which includes the president and the agencies he controls;
  • The legislative branch, consisting of the two houses of Congress, which are the House of Representatives and the Senate; and
  • The judicial branch, which includes the Supreme Court and all the nation's federal and state courts.

On August 24, 2021, the Commissioner of Health and Mental Hygiene ordered that Department of Education employees, contractors, and others get the COVID-19 vaccination.(“the Order”)

Two cases were filed against the mandatory vaccine for NYC Department of Education employees, one in State Court and the other in Federal Court. NY State Supreme Court Judge Laurence Love first granted a temporary restraining order and then rescinded the TRO in favor of the City mandate. 

Municipal Labor Committee et. al. decision

New York State Supreme Court Judge Lawrence Love said it right: "This is uncharted territory". 

Here are the papers in the Federal case filed by the FG Legal Group:

  1. DOE TRO Complaint
  2. DOE TRO Memo
  3. DOE TRO Order To Show Cause
  4. DOE TRO Gelormino Declaration
  5. DOE TRO Rachel Maniscalco's Declaration
  6. Amended Class Action Complaint
  7. Reply Memo (9.20.21)
For past email updates please click here.

On Monday, September 27, 2021, anyone who works for the City and does not have at least one shot of the COVID vaccine and does not have an approved exemption for health or religious reasons, will either have to take unpaid leave for a year or be terminated.

This will propel the Courts into, as Judge Love said, a new jurisdiction: having a say in what people must do to their bodies.

The individual right to freedom of choice in all matters formerly given only to medical doctors has been taken over by the  Third Branch of government.

The winners, in the short term, are the City and State governments. The long-term winners are yet to be determined. 

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Coronavirus Update NYC: Restraining order lifted on vaccine mandate for city teachers, staff
ABC News, Sept. 22, 2021

Vaccine Mandate for NYC Teachers, Staff Can Go Forward As Judge Lifts Restraining Order

 NBC News, September 22, 2021

The judge said he initially ordered the injunction because the city's original mandate didn't say anything about medical or religious exemptions, but said the city subsequently put out language saying nothing in the mandate would prohibit accommodations that are legally required.

A vaccine mandate for New York City's public school teachers and other staffers can go forward as planned next week, after a state judge on Wednesday lifted a temporary restraining order.

The city had announced last month that school employees would have to get at least a first dose of a coronavirus vaccine by Sept. 27, impacting about 148,000 school workers and contractors.

A coalition of city unions had filed a lawsuit against the mandate and had asked for the injunction against its implementation. State Supreme Court Justice Laurence Love put the TRO in place last week, but removed it in his ruling on Wednesday.

In a statement, the Department of Education said the ruling was “a big win for New York City children and Department of Education employees. Their health and safety is at the very core of this vaccine mandate, and we are pleased the court recognized the city’s legal authority.”

The officials with the unions said they intended to continue the legal action.

“We are deeply disappointed that the temporary injunction has been lifted," Henry Garrido, executive director of DC 37, said in a statement. “This is not the end of the road and we will continue to fight for the right of workers to make their own healthcare decisions."

The president of the Municipal Labor Committee, the group that filed the lawsuit against the mandate to begin with, said in a statement that their case "has already led to progress in protecting the rights of our members, since the city – in the wake of the court’s initial issuance of the restraining order – admitted that there can be exceptions to the vaccine mandate. The court -- while lifting the restraining order -- has not made a final decision, and we are preparing additional material to support our case."

When asked for comment, the United Federation of Teachers — the largest teachers union in the city — referred to the statement made by the Municipal Labor Committee, which they are a part of.

Love said he had initially ordered the injunction because the city's original mandate didn't say anything about medical or religious exemptions, but said the city subsequently put out language saying nothing in the mandate would prohibit accommodations that are legally required.

On Sept. 10, the city and the union representing teachers in the country's largest school district came to an agreement through an arbitrator on those teachers unwilling to get vaccinated, such as those with medical and religious exemptions. It was agreed that those educators must be offered alternative work assignments.

Non-classroom work will be offered to educators with specific medical conditions who have not been vaccinated, but also to vaccinated teachers who have suppressed immune systems, the arbitrator ruled.

Teachers who decline to vaccinate against COVID-19 and do not qualify for an exemption will be offered unpaid leave through September 2022 -- their medical insurance will still be covered. All staff who refuse unpaid leave can take a severance package instead, or face discipline, the union said at the time.

The judge said that removed the need for the injunction, and also doubted the unions' ultimately being able to succeed in their claim that their due process rights were being violated.

“The state and federal courts have consistently held that a mandatory vaccine requirement does not violate substantive due process rights and properly fall within the state’s police power," Love wrote.

Parents in the city seemed to agree with the judge's decision Wednesday night.

"I do think it's fair. It makes me feel my son's safer and we'll have more continuity in his teachers if they get sick," said parent Marcia Stern.

Even those who disagree with the finding found the logic behind the decision.

"I think it's unfair, but I also think it could protect them at the same time," said parent Randy Vazquez.

More than 80 percent of teachers have already been vaccinated, according to union estimates.

Middle school teacher Asa Henry said that allowing "the government to just be able to mandate anything, anytime, it sets a really bad precedent in the future," which is why he understood the reason for the unions' displeasure at it. However, he also said that keeping his daughter safe is the priority.

The ruling comes after New York City Mayor Bill de Blasio made tweaks to school COVID policy, a week after the nation's largest public school district opened its doors fully in person for the first time since the pandemic hit -- and a day after one Manhattan school announced it had to go all-remote because of an outbreak.

The two changes announced Monday involve testing and quarantine procedures and will take effect simultaneously on Sept. 27, which is also the deadline for city public school teachers and staff to have at least their first shot of the vaccine.

Starting then, schools will conduct randomized weekly testing, rather than biweekly testing, at all public elementary, middle and high schools citywide.

The mayor also said the city will shift its school quarantine approach to align with the CDC. Under that guidance, when there is a positive case in a single classroom, the unvaccinated students in that classroom will not have to quarantine if, and only if, they have been masked and keeping at least 3 feet of distance.

The Democrat said the adjustments were born from city officials' assessment of the first week of in-person classes for nearly a million students and how COVID policy could be improved going forward given the ongoing delta variant threat.

"The goal is always two crucial things -- first and foremost the health and safety of our kids and our whole school community, second maximizing the number of kids in school every day, avoiding disruption, giving our kids a chance to make that comeback that we know we're going to make this year," de Blasio said.

In an information session for UFT chapter leaders held Wednesday, union president Michael Mulgrew asked five yes or no questions regarding de Blasio's new COVID quarantine policy. The answers overwhelmingly showed frustration with the new decisions, including 98 percent of the 1,200 members present saying that the mayor has no clue what is happening inside of schools, and that neither de Blasio nor the city's Department of Education has a plan to keep the children in schools safe.

Copyright NBC New York/Associated Press