On September 23, the Supreme Court of the State of New York, New York County, ruled that enforcement of the City’s COVID-19 vaccine requirement for police officers is limited to fines and does not allow for personnel actions, such as job termination (In New York, the “Supreme Court” is the lower trial court).

In this case, Police Benevolent Association (PBA), et. al. v. City of New York, et. al., the PBA sought orders to; stop enforcement of the mandate, declare that the mandate exceeded the City’s authority, and give fired PBA members their jobs back with back pay. The PBA alleged that the vaccine mandate violated the New York City Charter and Administrative Code and that the Department of Mental Health and Hygiene (DOH) Commissioner acted beyond his authority in ordering the mandate.

Judge Lyle E. Frank focused his opinion on the question of authority of whether the DOH had the authority to enforce the vaccine mandate. First, he notes that, “it is undisputed that the DOH has the authority to issue vaccine mandates, that is not before this Court.” Frank narrowed the issues to: 1) whether the DOH can take adverse employment actions to enforce the mandate, and 2) whether it is lawful for DOH to impose conditions of employment upon the members of the PBA.

DOH Has Limited Authority

PBA argued that DOH’s authority to mandate vaccines only allows monetary fines for noncompliance. The City argued that the law allows penalties other than fines however they argued this “without any citations to relevant legislative history, case law or even DOH internal memorandum”.  Here, DOH’s action unilaterally created a new condition of employment, and Judge Frank found this to be improper. And the City failed to show any prior cases “where the DOH sought enforcement of a lawfully ordered mandate by creating a new condition of employment as to all City employees.” The Judge also noted that it would be a “gross overstatement” of DOH’s powers to read the applicable statue as allowing “enforcement of a vaccine mandate is enforceable by exclusion from the workplace, suspension, leave without pay and ultimate termination….”

Adverse Employment Actions Not Allowed

The City also argued that prior federal and state case rulings allow them to unilaterally create employment conditions, but Frank found this “unpersuasive.” He notes that while the City cites a multitude of cases wherein courts have ruled in favor of vaccine requirements, “however in those instances the City and the respective union collectively bargained to include the vaccination mandate as a new condition of employment, that is not the case here.” Also based on its interactions with other unions, “it is obvious to [the] Court that the unilateral imposition of a condition of employment is not something that either the DOH or the Mayor can do without collective bargaining.” Frank also said that the vaccine mandate was “appropriate and lawful” when it was issued. But he also said there is no legal basis for DOH to take adverse employment action against already-existing employees, as opposed to other enforcement mechanisms.

Mandate Enforcement Limited to Fines

Finally, the City alleges that the order to create a new condition of employment, i.e. vaccination, is similar to the residency requirement for City employees. But unlike the residency issue, there is no “statutory authority” for the argument. Frank concludes that DOH’s imposition of a new condition of employment is not “supported by any statute, rule or regulation cited by respondents.” Based on this, the court ordered that the vaccine mandate is invalid as far as it has been used to impose a new employment condition, that the mandate is invalid to the extent that it uses an enforcement mechanism other than monetary fines, and that, “members of the PBA that were caused to be wrongfully terminated and/or put on leave without pay as a result of non-compliance with the unlawful new condition of employment discussed above are directed to be reinstated to the status they were as of the date of the wrongful action.”

Currently-Employed Officers Protected During Appeal

In a press release, the PBA stated that, “This decision confirms what we have said from the start: the vaccine mandate was an improper infringement on our members’ right to make personal medical decisions in consultation with their own health care professionals. We will continue to fight to protect those rights.” While the City is appealing the ruling, portions of it are on hold, and those officers who were fired over the mandate will not get their jobs back quite yet. On the other hand, according to press reports, the City has indicated that it will not take any action to fire currently employed officers, nor to put them on unpaid leave, based on failure to get a COVID-19 vaccine during the appeal process.