The New York City Vaccine Mandate Is Dead! Long Live the Mandate!

Mayor Adams and the DOHMH have rescinded the City's remaining COVID-19 vaccine mandates, but the fundamental issues remain to be resolved by lawsuits and legislation.

A year ago, New York City fired more than 1,400 of its employees for failing to comply with the COVID-19 vaccine mandate. The number ticked up over the following months as exemption requests were denied, until it reached an estimated total of 1,780.

Even if that figure is accurate, the actual number of people who lost their jobs under the public sector mandate is clearly much higher, including those pushed to retire early or resign, nonpublic school and childcare workers, and the employees of City contractors who have gone uncounted.

But now things have changed . . .

Following the February 9 NYC Board of Health vote to end the City’s remaining COVID-19 vaccine mandates, the BOH issued a series of orders to rescind and repeal requirements for nonpublic school and other childcare staff; Department of Education employees, contractors and visitors; and City employees and employees of City contractors.

Mayor Eric Adams also issued an executive order which, among other details, suspends a section of the City’s Personnel Rules and Regulations to allow fired workers to reapply under rules that have now been published on the Department of Citywide Administrative Services website.

. . . or have they?

Friday morning on the Caribbean Power Jam Radio show The Reset, J.R. Giddings asked Mayor Adams about workers who were fired under the mandates: “What do they need to know about their jobs?” (Jump to 51:25 in the video, or read the transcript here.)

Adams lauded the mandates as a public health measure that saved lives and praised New Yorkers who got vaccinated despite any misgivings they had about taking a novel vaccine. “I take my hat off to Bill de Blasio,” he said. “That was a tough call. . . . If we didn't have that vaccine and we didn't have those mandates, we would have lost so many more lives.”

He also expressed no regrets about firing workers: “They made a decision, and the law was on our side that said we could mandate, and so they were removed.” When Giddings asked about giving fired workers back pay, Adams was adamant:

“Nope. Their back pay is the pay they got when they got another job somewhere. I mean, New Yorkers should not be paying for someone that wasn't working. . . . But no, there's not going to be any back pay.”

And Adams also spelled out just how unresolved the mandate issue is:

“Now that we're seeing a normalization of COVID, there may be another time that we are going to have to do mandates again, because these viruses are not going away. We're dealing with a whole new environment of what we are fighting against some of these viruses.”

It seems Adams’s view is not that the pandemic was an extraordinary emergency that required extraordinary use of emergency powers, but instead raised the curtain on a brand new era of intermittent mandates.

As for the process of reinstating workers who were fired or pushed out of their jobs under the now-rescinded mandate, “We are going to try to be as fair as possible,” Adams said. Reinstatement for those who apply within a limited timeframe will be at the discretion of the hiring agency and will restore seniority and salaries, but will not include any other kind of financial restitution.

How many former workers view the terms of reinstatement as being fair? None that I know of. In social media posts and conversations I’ve had with numerous former City workers, the universal reaction has been negative.

Former NYPD Lieutenant John Macari expressed the view I’ve heard from many workers who left or lost their jobs due to the mandate on his podcast this week (1:33:55 in the video below):

“I want full reinstatement. I want all the back pay for the year that I lost. I want my time reinstated. I want money for my pain and sufferings. And I want an apology. And I want my pension credit.”

Former NYPD Lieutenant John Macari discusses the City’s offer of reinstatement on episode 45 of his podcast, New York’s Finest: Retired & Unfiltered.

Lawsuits, Large and Small

With former workers unappeased by the City’s reinstatement offer, their lawsuits are continuing, and it’s in the courts that the future of employment mandates may be decided.

There are several lawsuits representing multiple plaintiffs in progress, and they address fundamental questions about the government’s authority to mandate vaccines for employees. All are asking for reinstatement and back pay, and some demand damages as well.

Here’s a rundown of the big cases:

• Chris Garry et al v. Eric Adams et al, representing 72 petitioners, led by attorney James Mermigis, and asking for $250 million in damages

• George Garvey et al v. City of New York et al, representing 16 Department of Sanitation workers, led by attorney Chad LaVeglia. Garvey prevailed in an October 2022 decision, but the City filed to appeal and failed to honor the decision’s reinstatement and back pay orders in the interim.

• George Garvey et al v. Eric Adams, a federal lawsuit for the same 16 DSNY plaintiffs and also led by Chad LaVeglia, is asking for $117 million in damages.

• The New York City Municipal Labor Committee et al v. Eric Adams et al, brought by the MLC and the City’s municipal labor unions. The MLC lost this case but filed a notice of appeal.

• Women of Color for Equal Justice et al v. The City of New York et al. This is a federal class action lawsuit led by attorney Jo Saint-George on behalf of 41 plaintiffs.

• Broecker et al v. New York City Department of Education et al. This is a federal class action lawsuit led by attorney Austin Graff on behalf of 93 terminated tenured DOE employees. The parties are waiting for the judge to rule on a motion to dismiss filed by the DOE.

• DiCapua et al v. New York City et al (updated 02-14-23, with more details here). This proposed class action suit led by attorney Sujata Gibson is being brought by 16 DOE workers and Teachers for Choice, and is asking for an extensive list of damages. It challenges the City and DOE’s denial of religious accommodations under the mandate.

• New Yorkers For Religious Liberty, Inc. v. The City of New York. This case addressing religious exemptions has been combined with Kane et al v de Blasio et al and Keil et al v. The City of New York, with attorneys Sujata Gibson, Barry Black, and John Bursch from the Alliance Defending Freedom working on the cases. Bursch made oral arguments before the U.S. Southern District Court of Appeals on February 8, and a decision is pending.

Many workers who were fired under the mandate attended the February 8 hearing and rallied outside of the Manhattan court building. The attorneys and plaintiffs came out of court in an optimistic mood and spoke about their determination to not only obtain compensation but to challenge the legality of mandates:

(Speakers and interviews: 1:55 and 9:15: Attorney John Bursch, 6:43: Attorney Barry Black, 17:30 and 25:30: plaintiff and Teachers for Choice founder Michael Kane, 13:22 and 36:44: interviews with plaintiffs and former workers)

Some unions are now saying they too are planning to sue the City for back pay on the behalf of fired workers.

Individual cases:

There are also dozens of individual lawsuits in the courts, and you shouldn’t discount their importance. While they aren’t asking for millions in damages, some are raising fundamental legal issues that could lead to precedent-setting decisions.

Attorneys Jimmy Wagner, James Mermigis, Christina Martinez, and Jeanette Poyerd-Loiacono have all been representing individual clients in lawsuits against the City and challenging the mandate.

I’ll be looking at the fundamental legal issues raised by these cases—large and small—as they go forward.

(What am I missing? If you know of any major New York cases that are not on my list or additional attorneys representing individuals, please let me know in the comments.)

Legislative Efforts

While many New York City elected officials have been silent on or supportive of the mandates, a handful have opposed them. City Council members who formed the Common Sense Caucus spoke publicly against the mandates and claimed credit for appealing behind closed doors to the mayor to end the mandates:

One of them, Councilmember Vickie Paladino, introduced a package of four measures in October 2022 that address fundamental questions of mandate powers and local government control:

With the last mandates ending, the Common Sense Caucus and anti-mandate activists have renewed their push to get the measures passed as a way of limiting future mandates.

Paladino’s legislative package:

• Introduction 0772
  A Local Law to amend the administrative code of the city of New York, in relation to reporting on criteria for mask mandates in schools within the city school district upon the implementation of such a mandate and monthly thereafter for the duration of such a mandate.

• Resolution 0341
  Resolution calling on the New York State Legislature to pass, and the Governor to sign, legislation that would prohibit the alteration of terms and conditions of employment for all employees during a state disaster emergency.

• Resolution 0342
  Resolution calling upon the Mayor and the New York City Department of Education to establish rigorous scientific criteria, including an emphasis on mental health repercussions, that must be met before masking is mandated upon schoolchildren.

• Resolution 0343
  Resolution calling upon the New York State Legislature to pass, and Governor to sign, S.7545 /A.9342, to make the extension of certain local emergency orders subject to the approval of the local governing.

State-level legislation

There are no current state bills proposing vaccination requirements for employment, but Jeffrey Dinowitz’s A8398 Assembly bill would limit “exemptions from immunization requirements by local governments and private entities to medical exemptions, and repeal religious exemptions for certain post-secondary students.”

Most of the individual lawsuits in the New York court system now have been brought by people who were denied a religious exemption to COVID-19 vaccination. If Dinowitz’s bill becomes law, there will be no religious exemption option at all should New York City roll out new mandates for employment in the future.