Judge Says Group Of Unvaccinated NYC Public Employees Can Return To Work, Get Back Pay

Judge Ralph J. Porzio ruled the city's public employee COVID vaccination mandate “arbitrary and capricious.” The city has appealed Porzio's decision.
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A judge on Monday ruled a group of public New York City employees who were fired after failing to comply with the city’s vaccination requirements should be reinstated in their positions and receive back pay.

In October 2021, Dave Chokshi, who was New York City health commissioner at the time, issued a COVID-19 vaccination mandate for city employees, saying those who wouldn’t comply shouldn’t be allowed into their workplace.

The city expanded the order in December 2021 to cover private sector employees who work in-person and interact with their colleagues and the public, but earlier this year Mayor Eric Adams announced unvaccinated athletes and performers would be exempt from that mandate.

The 16 former employees of the city’s Department of Sanitation who were laid off in February 2022 argued Adams’ exemption announcement rendered the public employee vaccination mandate “arbitrary and capricious.”

“The vaccination mandate for city employees was not just about safety and public health; it was about compliance,” Porzio wrote.

Porzio said if the order was motivated by safeguarding public health it would apply to all workers in the city.

“In a city with 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,” the judge said.

The city has appealed Porzio’s decision.

“The city strongly disagrees with this ruling as the mandate is firmly grounded in law and is critical to New Yorkers’ public health,” a spokesperson for the city’s law department said, according to WABC-TV. “In the meantime, the mandate remains in place as this ruling pertains solely to the individual petitioners in this case.”

Over 1,760 public city workers have been fired for failing to meet the vaccination criteria, the mayor’s office told City & State in September. Overall, the city has 333,000 positions, the outlet said.

Meanwhile, the private sector vaccination requirement for the city is set to expire on Nov. 1.

Porzio added that Chokshi overstepped his authority in making decisions in regard to the employment of city employees, noting the commissioner doesn’t have the power to terminate employees or exempt others from the rules.

The judge also discussed the effectiveness of COVID-19 vaccines at preventing infection to justify his verdict — noting that both vaccinated and unvaccinated individuals can contract COVID — despite arguing his decision was not intended to opine on vaccination but instead address how those who worked through the pandemic are treated.

“The petitioners should not have been terminated for choosing not to protect themselves,” Porzio wrote. “We have learned through the course of the pandemic that the vaccine against COVID-19 is not absolute.”

The Centers for Disease Control and Prevention, though, has continued to emphasize the benefits of COVID-19 vaccination in protecting individuals “against severe disease, hospitalization, and death in adults, including during omicron variant predominance.”

“Effectiveness against infection has waned across all age groups, but this is expected. Protection is highest in adults who receive all recommended booster doses,” the agency says.

Porzio also made note of President Joe Biden’s comments declaring “the pandemic is over” in an interview with CBS’s “60 Minutes” last month, as well as the city’s decision to end a state of emergency over the virus.

Biden on Tuesday was vaccinated with a bivalent booster shot in a live broadcast, calling on Americans to do the same ahead of an expected winter COVID-19 surge.

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