On October 24, Judge Ralph Porzio of the New York Supreme Court for Richmond County ruled in favor of 16 sanitation workers who were suing the City of New York over its pubic employee COVID-19 vaccine mandate. As we recently reported, back on September 23 another New York court had ruled that police officers cannot be fired for declining the vaccines.

Judge Porzio put the case in context when he reported that the New York City’s Health Commissioner issued its public employee mandate in October 2021, and that the employees suing had been fired in February 2022 for failure to get vaccinated. The Judge also reported that on December 13, 2021, the Commissioner expanded the vaccine mandate to include employees in the private sector. And on March 24, 2022, New York’s Mayor Eric Adams ordered that athletes, performers, and other artists have a “blanket exemption” from this private employer mandate. Also, the private employee mandate was due to, and did, expire on November 1, 2022.  

Athletes, Artists, Performers Exempted

The central argument of the sanitation workers is that the exemptions to the private employer mandate “rendered the public employee vaccination mandate arbitrary and capricious or unconstitutional.”. Porzio zeros in on the fact that Mayor 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.”

Why Wasn’t Testing an Option?

Porzio also opined that the fired workers could have been permitted to submit to COVID-19 testing and continue to work, as would have been allowed by Mayor Adams’ August 2021 order. Also, the workers provided lab documentation showing they all have natural immunity to COVID-19.  In light of all these facts, the judge ruled that the vaccine mandates for public and private employees are “arbitrary and capricious” and that there is nothing in the case record to show why only public employees were included in the October 2021 mandate.

Judge: Mandate for All or Mandate for None

And though, “the Board of Health has the power to regulate vaccinations and adopt measures to reduce the spread of infectious disease…the Board of Health does not have the authority to unilaterally and indefinitely change the terms of employment for any agency.” Hence the City acted outside its proper exercise of authority. Judge Porzio agreed that while a temporary vaccination order might be upheld, he said that “ordering and enforcing that vaccination policy on only a portion of the populace for an indefinite period of time, is akin to legislating. It appears that in issuing this indefinite order, usurping the power of the legislature, the Health Commissioner has acted beyond his authority.” Also, treating private and public employees differently, and also exempting performers, means that the New York state Constitution’s requirement of equal protection is violated. Quoting Porzio, “Either there is a mandate for all, or there is a mandate for none.”

Pandemic is “Over”—Back Pay Ordered

In summing up, Porzio notes that vaccination does not prevent contracting, or passing on, COVID-19 in that breakthrough cases occur even among the most boosted, that President Biden has said the pandemic is “over,” and that New York ended it COVID state of emergency over a month prior to his ruling. Based on all his reasoning, the judge ordered that the sanitation workers be reinstated to full employment with back pay from the date they were fired. According to press reports, the City of New York has filed an appeal, which will likely delay enforcement of the October 24 decision.