New York City COVID-19 Vaccine Mandates Dealt a Fatal Blow
On October 25, 2022, the Supreme Court of the State of New York, Richmond County, upheld a challenge to New York City’s vaccine mandate for public-sector employees, ordered the immediate reinstatement of and back pay to former New York City Department of Sanitation employees who had challenged the mandate, and declared the vaccine mandate for private-sector employees to be arbitrary and capricious.
Several Department of Sanitation employees were discharged in February 2022 due to their failure to comply with an order of the Commissioner of Health and Mental Hygiene of the City of New York requiring all city employees to demonstrate proof of receiving at least one dose of a COVID-19 vaccine by October 29, 2021. Although the Department of Sanitation subsequently issued a letter in June 2022 offering to reinstate the former employees if they complied with the vaccine mandate, the petitioners declined, and filed an action seeking a declaratory judgment and other relief.
The Court’s Decision
The New York supreme court held that the health commissioner’s order of October 20, 2021, violated the New York State Constitution’s separation-of-powers doctrine and its equal protection doctrine, which guarantees substantive and procedural due process rights. In addition, the court concluded that the health commissioner’s October 20, 2021, vaccine mandate for public-sector employees, the health commissioner’s December 13, 2021, vaccine mandate for private-sector employees, and the March 24, 2022, Emergency Executive Order No. 62 establishing blanket exemptions from the vaccine mandate for athletes, performers, and other artists, were arbitrary and capricious. As the court explained, the mandates resulted in “identical unvaccinated people being treated differently by the same administrative agency.” The court also noted that the City of New York had not justified the two-month lag between the issuance of the public-sector mandate and the private-sector mandate or explained why it could not continue with a vaccinate-or-test policy. The court also noted that it was unexplained why the petitioners were kept at full duty for several months while exemption requests were pending.
Addressing the separation-of-powers doctrine, the court concluded that the Board of Health had exceeded its authority by “unilaterally and indefinitely” changing the terms of employment for city employees who had never been required to furnish proof of vaccination against the seasonal flu or other illnesses. The court also held that the health commissioner had exceeded his authority by directing that unvaccinated public-sector employees would be excluded from their work premises, and distinguished Department of Sanitation employees from healthcare employees who “have always been required to be vaccinated against infectious diseases.” The court also noted that the collective bargaining agreement between the petitioners’ union and the City of New York did not contain a vaccine mandate, and, accordingly, the court questioned the creation of a new condition of employment during the term of the contract. Additionally, the court noted that “states of emergency are meant to be temporary.”
The court’s order effectively ends New York City’s COVID-19 vaccine mandates for public-sector and private-sector employees who were covered by the October 20, 2021, and December 13, 2021, orders of the health commissioner. As New York City Mayor Eric Adams announced on September 20, 2022, the mandate for private-sector employees became optional on November 1, 2022. The immediate practical effect of the ruling is therefore more limited for these individuals than for public-sector employees, as Mayor Adams had announced an intention to maintain the public-sector mandate.
Although private businesses may continue to require COVID-19 vaccination pursuant to their own policies, employers with New York City-based employees may wish to consider whether to modify their policies and practices in light of this decision and the changing landscape of COVID-19 restrictions in New York and elsewhere.