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Volume XIII, Number 82


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New York Judge Blocks COVID-19 Vaccination Mandate for Healthcare Facilities

On January 17, 2023, a New York trial court judge struck down the state’s vaccine mandate for healthcare workers, ruling that the New York State Department of Health (DOH) acted outside its authority and noting that “the COVID-19 shots do not prevent transmission.”

The decision by Onondaga County Supreme Court Judge Gerard Neri in Medical Professionals for Informed Consent vs. Bassett, sided with a group of medical professionals who were at risk of losing or lost their jobs due to the mandate, who had argued that the mandate was irrational and failed to even prevent the spread of COVID-19.

The mandate, entitled “Prevention of COVID-19 transmission by covered entities,” was initially issued early on in the COVID-19 pandemic and required covered healthcare providers in New York to “continuously require personnel to be fully vaccinated against COVID-19.” The commissioner of health later adopted the mandate as a permanent regulation in June 2022.

Judge Neri ruled that by adopting the regulation, the “DOH blatantly violated the boundaries of its authority as set forth by the legislature.” The judge said that it was so beyond the authority of the agency that it was not necessary to review the regulation under a typical multi-factor analysis. Regardless, the judge said those factors still weighed against the mandate because the agency clearly operated outside its authority, the mandate did not fill in missing areas of law, the legislature had considered other proposals, and the DOH ignored special expertise as the vaccine does not prevent transmission.

Judge Neri ruled, alternatively, that the mandate is “arbitrary and capricious.” The judge stated that “[i]n true Orwellian fashion, the [state] acknowledge[s] then-current COVID-19 shots do not prevent transmission.” The judge further noted that the mandate’s definition of “fully vaccinated” as being “determined by the [DOH] in accordance with applicable federal guidelines and recommendations,” has no definite meaning and “contains all the hallmarks of absurdity.”

The state had argued in a memorandum filed in December 2022 that there was a rational basis for the mandate as it was meant to fight the spread of a “dangerous virus,” protect the health of patients and staff of healthcare facilities, and prevent staffing shortages caused by the spread of the virus. The state pointed out in the memorandum that COVID-19 has infected more than five million people in New York and caused more than 73,000 deaths across the state.

The state has filed a notice of appeal seeking to overturn Judge Neri’s decision. According to reports, the DOH had issued a statement saying that it disagreed with the ruling and that it was “exploring all options.”

Key Takeaways

The New York court is the latest to strike down mandates requiring employees to be vaccinated against COVID-19, while several state and federal courts have upheld such mandates in other parts of the country, causing some uncertainty for employers dealing with COVID-19 issues in the workplace. At the same time, other vaccination requirements have been lifted by state and local authorities as part of a wider easing of COVID-19 restrictions. Meanwhile, many healthcare facilities are facing staffing shortages, though it is unclear if the lifting of mandates will resolve them.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XIII, Number 26

About this Author

Janice Dubler Employment Attorney Ogletree Deakins Law

Janice Dubler is a shareholder in the Philadelphia and Cherry Hill, New Jersey, offices of Ogletree Deakins. She concentrates her practice on employment litigation, developing employment policies and providing counsel to clients on litigation avoidance.

Janice appears before federal and state courts and administrative agencies in connection with a broad range of employment matters including discrimination and harassment claims based on gender, sexual orientation, race, age, national origin and disability, as well as retaliation and whistleblower allegations, breach of contract,...

Cynthia Bremer, Minneapolis, Office Shareholder, Employment, Labor, Attorney, Ogletree Deakins Law FIrm
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Cynthia Bremer is the managing shareholder of the Minneapolis office. Cynthia has extensive experience in employment law and complex litigation matters. Her practice focuses on representing corporations and corporate management in all types of employment law matters. While Cynthia’s primary focus has been employment litigation defense in federal and state courts throughout the Midwest, including class and collective actions, Cynthia also advises companies on critical employment law issues involving past and present employees. Further, Cynthia has litigated numerous restrictive covenants...

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Prior to joining Ogletree Deakins, Zachary served as a Senior Reporter for Law360, a leading online legal news publication, covering the sports and...