A State Supreme Court Justice a few weeks ago struck down New York City's requirement that all City and private employees must be vaccinated for COVID-19. The directive was deemed arbitrary and capricious because the Mayor exempted certain private employees from the mandate.
The case is Garvey v. City of New York, issued by Justice Ralph J. Porzio of Staten Island Supreme Court on October 25. In October 2021, the City's Health Commissioner ordered that all City employees get at least one dose of the vaccine by October 29, 2021. The petitioners who brought this lawsuit work for the Sanitation Department. They were fired in February 2022 for failure to comply with the vaccine requirement. Meanwhile, the Commissioner extended this mandate to employees in the private sector. But the private sector mandate had exemptions for athletes, performers, and other artists.
When you want to challenge a government mandate, one way to do so is through an Article 78 petition, which will succeed if the court finds the mandate is arbitrary and capricious. These petitions are difficult to win, as the government often gets the benefit of the doubt. Not this case. The petitioners win because the private employee exemption is not rational. The Court writes, "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."This mandate also violates the Equal Protection Clause of the New York Constitution.
The Court further notes that most of the plaintiffs here sough exemptions but received generalized or vague denials. "There was no reason that they could not continue to submit to testing and continue to fulfill their duties as public employees." Also, as of November 1, 2022, the private employee mandate was lifted. The Court writes:
Though vaccination should be encouraged, public employees should not have been terminated for their noncompliance. Over 79% of the population in New York City are vaccinated. These unvaccinated employees were kept at full duty while their exemptions were pending. Based upon the Petitioners' vague denial of their exemption, the fact they were kept at full duty for several months while their exemptions were pending, the Mayor's Executive Order granting exemptions to certain classes of people and the lifting of the private sector mandate, this Court find the Commissioner Orders of October 20, 2021 and December 13 2021 as well as the Mayor's Executive Order No. 62 to be arbitrary and capricious.
The mandate is stricken for other reasons, as well. The Court finds that the Health Commissioner acted outside his authority as only the Legislature can issue a mandate like this.I have seen other cases like this, mostly in federal court, where the government imposes a vaccine mandate on some but not all residents. This often arises in the religious discrimination context, but in this case the rationale for striking down the mandate is broader: the government permitted arbitrary exemptions not based on religion but instead to favor athletes and performers.
The result is the terminated employees got their jobs back with lost wages. The City has filed a notice of appeal to the Appellate Division, Second Department. It originally asked the Second Department for a discretionary stay of Supreme Court's ruling, but a few days later it withdrew that application, noting that Supreme Court made clear that its ruling was stayed in any event pending appeal.
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