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‘Arbitrary and capricious’: Judge strikes down NYC vaccine mandate, workers entitled to back pay

'The vaccination mandate for City employees was not just about safety and public health; it was about compliance'

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Yudi Sherman

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October 25, 2022

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08:21 AM

‘Arbitrary and capricious’: Judge strikes down NYC vaccine mandate, workers entitled to back pay

A New York judge Tuesday struck down New York City’s vaccine mandate for city workers which saw approximately 1,430 workers terminated in February 2022. According to the Richmond County Supreme Court ruling, all city employees are allowed back to work and entitled to back pay. 

In his ruling, Judge Ralph Porzio slammed the mandate, which he called “arbitrary and capricious,” for several reasons. 

Among them was the fact that in March 2022, New York City Mayor Eric Adams decided to grant a special exemption in the private sector for athletes, performers and other artists. In doing so, says the court, Adams “made a different decision for similarly situated people based on identical facts. There is nothing in the record to support the rationality of keeping a vaccination mandate for public employees, while vacating the mandate for private sector employees or creating a carveout for certain professions like athletes, artists, and performers. 

“This is clearly an arbitrary and capricious action because we are dealing with identical unvaccinated people being treated differently by the same administrative agency.” 

All but one of the sixteen city employees who brought the lawsuit had applied for exemptions, and “received generalized and vague denials.” Judge Porzio noted that while the exemptions were being considered, the employees remained unvaccinated and on full duty, showing the vaccination was not as urgent, and the employees were not as dangerous, as the city claimed. 

The city brought several arguments, one being that the lawsuit was brought too late, past the statute of limitations. The court dismissed this argument given Adams’ private exemption order issued in March 2022, and in June 2022, the employees were sent letters by the city offering them their jobs back if they would take the injections. 

The city also argued that it is legal for a city to make vaccination a condition of employment. This, too, the court dismissed, because not only was that not a condition made when the employees signed their contracts, but the city’s health commissioner has no authority to enact a term of employment under the Health Code to city employees. 

According to Judge Porzio, the unvaccinated are “responsible for their own health. They choose for themselves whether to be vaccinated or to risk infection. City employees should also have the right to make their own choice for their own health.” 

Then the order shredded the vaccine mandate as tortious. 

“The vaccination mandate for City employees was not just about safety and public health; it was about compliance,” Judge Porzio wrote. “If it was about safety and public health, unvaccinated workers would have been placed on leave the moment the order was issued. 

“If it was about safety and public health, the Health Commissioner would have issued city-wide mandates for vaccination for all residents. In a City with a nearly 80% vaccination rate, we shouldn’t be penalizing the people who showed up to work, at great risk to themselves and their families, while we were locked down. 

“If it was about safety and public health, no one would be exempt. It is time for the City of New York to do what is right and what is just.” 

Attorney Chad Laveglia, who represented the city workers, hailed the decision. 

“It’s null and void,” said Laveglia. “We just defeated the vaccine mandate for every single city employee.” 

As of 6:00 AM on October 25, 2022, all city workers fired for not taking the injections are reinstated and entitled back pay in salary from the date of termination. 

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