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Judge Lifts Restraining Order On Vaccine Mandate for NYC School Staff
By
Jessica Gould
Published Sep 22, 2021
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Caroline Lewis
By
Jessica Gould
Published Sep 22, 2021
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A New York State Supreme Court judge has lifted the temporary restraining order blocking the city’s vaccine mandate for public school staff. Judge Laurence Love said he hopes to rule on the broader validity of the vaccine mandate for educators early next week.
In lifting the restraining order, Love said he believes the challenge to the mandate by a group of municipal unions is unlikely to prevail. He wrote “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.” He cited case law going back to 1905 that upheld the government’s authority to require vaccines. He also said it will be hard for the unions to prove “irreparable damage” as a result of the mandate, or that their interests in the case outweigh those of the broader public health.
“This is a big win for New York City children and Department of Education employees,” said education department spokesperson Danielle Filson.
The city has required all school staff to get their first dose of the COVID-19 vaccine by September 27th. Unlike the rest of the municipal workforce, educators do not have the option to get tested weekly instead. The mandate applies to all adults who work in public school buildings, including teachers, administrators, counselors, cafeteria workers, custodians, school safety agents, and contracted employees.
But earlier this month, the coalition of unions represented by the Municipal Labor Committee sued the city arguing the mandate violates workers’ constitutional right to due process.
In response to the legal challenge, Love issued a temporary restraining order last week, pending the outcome of today’s hearing.
“We are deeply disappointed that the temporary injunction has been lifted. 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,” said Henry Garrido, Executive Director of District Council 37, in a statement.
The statement said that the majority of its members are vaccinated and called upon the city to restore an option for school staff to take a weekly COVID test instead of mandating the shot.
Arguing on behalf of the unions, Allen M. Klinger, attorney with the firm Stroock & Stroock & Lavan LLP, said the labor groups he represents “are not anti-vaxxers,” adding that many union leaders have encouraged their members to get vaccinated. But he said the vaccine mandate violates “the bodily integrity” of the employees, who can submit to “a forced injection or you lose your job.”
But workers will not have to leave their jobs altogether. An arbitrator recently ruled that educators can apply for medical or religious accommodations, although only a very small group will likely qualify. Education workers who still refuse to take the vaccine can either take unpaid leave while maintaining their health insurance or resign. City health officials have now amended the language of the original mandate to allow for “reasonable accommodations.”
At the court hearing Wednesday, New York City’s assistant corporation counsel Kimberly Brown said the unions’ challenge had “no merits.” She said the mandate aligns with the Centers for Disease Control and Prevention’s recommendation that all school staff be vaccinated as soon as possible. In its court filing, the city argued the mandate is driven by “potentially saving lives, protecting public health, and promoting public safety.”
In an unrelated press conference Wednesday morning, Mayor de Blasio said 87% of teachers are vaccinated. According to the education department, there are 78,000 teachers total, meaning 67,860 have gotten at least one shot, and 10,140 have not. Of the 148,000 school staff members, de Blasio said “around 80%” have had at least one dose, leaving 29,600 who have not. Some school administrators have said they are worried about essential staff not showing up after the mandate goes into effect. But de Blasio said the education department is ready to deploy substitutes if unvaccinated teachers do not come to class next week.
Judge Love said all individuals are entitled to their beliefs, and noted the hard work of city employees during the pandemic.
“DOE employees, city employees, contractors and others who work within the school system have already endured much over these last eighteen months while providing education both virtually and in person for our children,” he said.
The court challenge focused on the vaccine requirement for public school staff, but the unions believe a decision in their favor could set a precedent that would apply to the broader vax-or-test requirement for municipal workers.
“The court -- while lifting the restraining order -- has not made a final decision, and we are preparing additional material to support our case,” said Harry Nespoli, Municipal Labor Committee Chair.
Tagged
public school
COVID-19
vaccine mandate
Jessica Gould
Jessica is the education reporter for WNYC and Gothamist. During the Covid-19 pandemic, Jessica reported on the shutdown and reopening of the nation’s largest school system, highlighting the unprecedented impacts on learning, health and mental health for students, staff and families. Got a tip? Email [email protected]
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Gothamist is funded by sponsors and member donations
Gothamist is funded by sponsors and member donations
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