UPDATE November 29, 2021
Federal judge blocks 'boundary-pushing' vaccine mandateUCS Enjoined, Restrained From Implementing Mandatory Vaccination Requirement:
New York Law Journal, October 19, 2021 at 12:00 AM
DOCKET
Practice Area: Employment Litigation
Date filed: 2021-09-24
Court: Supreme Court, Albany
Attorneys: for plaintiff: For Petitioner: Steven M. Klein, of counsel, Daren J. Rylewicz, Esq., Civil Service Employees Association Inc., Albany, New York.; for defendant: For Respondent: Anthony Perry, Esq. and Lisa Evans, Esq., Office of Court Administration, New York, NY. For New York State Public Employment Relations Board: Michael Fois, Esq., Albany, New York.
Judge: Justice Christina Ryba
Case Number: 908328-21
CASE DIGEST SUMMARY
Petitioner CSEA filed an improper practice charge against the NYS Unified Court System claiming its unilateral imposition of a mandatory COVID-19 vaccination requirement absent proper negotiation with CSEA violated its CBA. PERB found reasonable cause to believe UCS's unilateral implementation of the requirement was an improper practice, authorizing CSEA to commence this suit for injunctive relief and restraining UCS from implementing the requirements until PERB was able to issue a decision on the merits. CSEA argued the requirement constituted a new work rule changing terms and conditions of employment, thus UCS's unilateral imposition constituted an improper practice. The court agreed finding reasonable cause to believe UCS's unilateral imposition of the requirement was an improper practice violating CSL §209-a(1)(d). It also found UCS's imposition of the requirement before receiving PERB's decision on the improper practice charge would result in immediate and irreparable injury to UCS employees and CSEA, granting its application for temporary injunctive relief and enjoining UCS from applying the requirement.
FULL CASE DIGEST TEXT
On September 3, 2021, petitioner Civil Service Employees Association Inc., Local 1000, AFSCME, AFL — CIO (hereinafter CSEA), the bargaining unit for certain non-judicial employees of respondent New York State Unified Court System (hereinafter UCS), filed an improper practice charge against UCS alleging that its unilateral implementation of a mandatory COVID-19 vaccination requirement without proper negotiation with CSEA violated its collective bargaining obligations under Civil Service Law §209-a (1) (d).
Here, the mandatory vaccination requirement that forms the basis of CSEA’s improper practice charge against UCS was first enunciated in an emailed directive of Chief Administrative Judge Lawrence Marks, dated August 25, 2021, advising that UCS was implementing a mandatory COVID-19 vaccination requirement for all non-judicial employees that would take effect on September 27, 2021, with full details to follow in a forthcoming announcement. Those specific details were later set forth in a Memorandum entitled “Mandatory Vaccination Requirement”, which was disseminated via email to all nonjudicial personnel on September 10, 2021.
All non-judicial personnel must be fully vaccinated against COVID-19 by September 27, 2021, or as soon thereafter as medically practicable provided they have received at least one dose of a COVID-19 vaccine by such date.
To this end, no later than September 27, 2021, all-non-judicial personnel must either submit proof that they: (1) are fully vaccinated; or (2) have received at least one dose of any COVID19 vaccine.
The Memorandum proceeds to outline acceptable forms of proof of vaccination, the procedures for submitting such proof, the requirement that partially vaccinated employees submit to regular mandatory COVID-19 testing until fully vaccinated, and the manner in which an employee may seek a medical or religious exemption to the mandatory COVID-19 vaccination requirement. The Memorandum further delineates the consequences to be imposed upon employees who fail to comply with the mandatory vaccination requirement as follows:
Non-Compliance
Employees who fail to comply with the provisions of this Policy are prohibited from reporting to work and may be considered absent without authorization for which approval to charge accruals may be denied until they have taken steps to remedy their non-compliance. Continued failure to comply may result in disciplinary action, up to and including termination.
CSEA contends that the mandatory vaccination requirement constitutes a new work rule which changes the terms and conditions of employment, and that therefore UCS’s unilateral promulgation and implementation of the mandatory vaccination requirement without prior negotiation constitutes an improper practice in violation of Civil Service Law §209-a.1 (d). Under the Taylor Law (Civil Service Law §200 et seq.), a public employer is obligated to negotiate in good faith with the bargaining representative of its current employees regarding “terms and conditions of employment” (Civil Service Law §204 [2]), and the failure to do so constitutes an improper employment practice (see, Civil Service Law §209 — a [1] [d]).
Upon a full review of the record and consideration of the contentions advanced by the parties during oral argument, the Court concludes that there is reasonable cause to believe that UCS’s unilateral imposition of the mandatory vaccination requirement is an improper practice that violates Civil Service Law §209-a (1) (d). The mandatory vaccination requirement potentially implicates a variety of terms and conditions of employment requiring mandatory negotiation, including but not necessarily limited to possible discipline and termination for non-compliance (see, Town of Carmel Police Benev. Ass’n Inc. v. Pub. Emp. Rels. Bd. of State of NY, 267 AD2d at 859 [1999]). While the requirement for mandatory bargaining may be circumvented where a clear legislative intent grants the employer authority to impose the unilateral change in question (see, Matter of City of Schenectady v. New York State Pub. Empl. Relations Bd., 85 NY2d at 486 [1995]), UCS has failed to identify any statute which specifically permits the imposition of a mandatory COVID-19 vaccination requirement without prior negotiation. Moreover, UCS has failed to produce any Executive Order or administrative regulation which would authorize the mandatory vaccination requirement it seeks to impose.
To the extent that UCS argues that its authority to unilaterally impose a mandatory vaccine requirement upon its employees is derived from Judiciary Law §211, the Court is not persuaded. Although that statute permits the Chief Judge to establish administrative policies for general application to UCS personnel, Judiciary Law §211 (1) (d) expressly requires that such standards “be consistent with the civil service law” — which as previously noted requires UCS to negotiate in good faith with the bargaining representative of its current employees regarding “terms and conditions of employment” (Civil Service Law §204 [2] ). Moreover, to the extent that UCS relies upon a recent decision of the Honorable Lawrence L. Love in New York City Municipal Labor Committee v. The City of New York (Supreme Court, New York County, Sept. 22, 2021) lifting a temporary injunction relating to mandatory vaccinations, that case is distinguishable because, unlike this case, authority for the mandatory vaccination order therein was premised upon an emergency Executive Order and various administrative regulations authorizing the adoption of vaccination measures to control the spread of COVID-19. Similarly, this case is distinguishable from Matter of Serafin v. New York State Department of Health (Index No. 908296-211) inasmuch as the mandatory vaccination requirement, in that case, was premised upon statutory and regulatory authority.
Next, the Court also determines that UCS’s imposition of the mandatory vaccination requirement on September 27, 2021, before receiving PERB’s decision on the improper practice charge, will result in immediate and irreparable injury to UCS employees and CSEA. Indeed, if PERB ultimately deems UCS’s mandatory vaccination requirement improper, CSEA-represented employees who unwillingly complied with the directive will have no recourse because they will suffer a harm that is not compensable by money damages. In addition, CSEA will suffer irreparable harm to its fundamental purpose and diminish the trust of those it represents if UCS is allowed to even temporarily circumvent the collective bargaining requirements required by the Civil Service Law while the underlying improper practice charge is pending before PERB.
In view of the Court’s finding that there is reasonable cause to believe an improper practice has occurred and that irreparable injury will result unless the status quo is maintained, CSEA’s application for temporary injunctive relief is hereby granted.
For the foregoing reasons, it is hereby
ORDERED that respondent New York State Unified Court System is hereby enjoined and restrained from applying the mandatory vaccination requirement, scheduled to commence on September 27, 2021, to non-judicial employees represented by CSEA, and it is further
ORDERED that the Administrative Law Judge in the underlying improper practice proceeding is directed to issue a decision on the merits of the charge within 60 days of this decision.
This constitutes the Decision of the Court, the original of which is being transmitted to the Albany County Clerk for electronic filing and entry. Upon such entry, counsel for petitioner shall promptly serve notice of entry on all other parties (see, Uniform Rules for Trial Courts [22 NYCRR §202.5-b [h] [1], [2]).
Dated: September 24, 2021
CSEA filed a petition seeking restraining order; hearing set for Oct. 1
CSEA files lawsuit to block New York vaccine mandateThe petition is one of at least three that seek to halt the mandate set to take effect Monday [September 27, 2021]
Brendan J. Lyons, Times Union, Sept. 23, 2021
ALBANY — The state Civil Service Employees Association has filed a petition on behalf of roughly 5,600 members who work in the state's court system seeking an injunction to halt the vaccine mandate that is scheduled to go into effect on Monday.
A similar petition was also filed in state Supreme Court in Albany this week on behalf of a group of Buffalo-area physicians, nurses and a nursing home administrator. Assemblyman David DiPietro, an Erie County Republican, is also listed as a plaintiff in that case.
The legal action is unfolding as Gov. Kathy Hochul's administration has not backed down from a mandate that was announced in July by former Gov. Andrew M. Cuomo. It requires a multitude of public-facing workers, mainly in hospitals, nursing homes and other long-term care facilities, to receive at least their first vaccination by Sept. 27 — and for others a deadline of Oct. 7 — or risk being suspended or terminated from their jobs.
The mandate affects both public and private health care facilities. Thousands of nurses and other medical professionals have declined to be vaccinated; officials with hospitals and group homes that care for the disabled said a staffing crisis that existed before the coronavirus pandemic will be exacerbated if many of those workers are off the job next week.
Many hospitals are reducing or eliminating elective surgeries and some are diverting patients to other hospitals to deal with the staffing issues.
Hochul's office on Wednesday did not answer questions about whether the governor might delay the mandate or has a plan in place if large numbers of nurses and other health care professionals are suspended from their jobs beginning Monday.
At a news conference Thursday morning, the governor said she "will be announcing a whole series of initiatives to be prepared for a situation on Monday that I hope doesn't happen.
"These are obviously very caring people or they obviously would not have chosen this profession," she said. "Every single person who ends up in your care has the right to know ... that there is no chance they will be infected by the person charged with protecting them and their health. ... Those who have done the right thing don't want to be with people who are not vaccinated ... they're entitled to a safe workplace as well."
Health care industry officials, including many private hospitals, are separately making plans for a potential staffing crisis.
“The science is clear, vaccines work, and we need as many people vaccinated as soon as possible. But this could turn out to be the paradox of the mandate,” Michael Balboni, executive director of the Greater New York Health Care Facilities Association, said in a statement issued Thursday morning. “We want to make staff and residents safer through vaccination, but if people start walking off the job and there aren’t enough workers to take care of residents, we actually put them in jeopardy.”
Balboni, who is not calling for the mandate to be rescinded or delayed, said his organization and industry administrators are calling for a staffing emergency plan, which may include mutual-aid requests, increased distribution of personal protective equipment, real-time monitoring by the state’s health department and increased testing.
Hochul's administration this week was locked in negotiations with multiple state labor unions, who have said the state's mandate should have been subject to collective bargaining and not simply imposed under a provision of state health law.
In the case filed by CSEA this week, they said the Public Employment Relations Board had determined the state Unified Court System's vaccination mandate for judges and nonjudicial employees "constitutes an improper practice" and authorized the union to file for a temporary injunction in state Supreme Court. CSEA is seeking a stay of the mandate until an administrative law judge issues a decision in their PERB case.
In the case filed on behalf of the Buffalo-area medical professionals, they assert that the U.S. Food and Drug Administration earlier this month reported a "1,000 percent increase" in adverse reactions to coronavirus vaccines at a meeting where it recommended against requiring booster shots for people under 65.
That petition also states the mandate does not provide exemptions for religious beliefs or for those "that were previously infected with COVID-19 and who have natural immunity."
Natural immunity "is at least as effective as vaccination at preventing future COVID-19 infections," the petition states, adding that a person who gets vaccinated to keep their job but suffers an adverse reaction "will be without any legal recourse for any such injuries or damages they suffer as a result of vaccination."
Late Wednesday, after the Times Union asked the governor's office for comment, it issued a statement saying that separate agreements with CSEA and the Public Employees Federation would allow nurses and other health care professionals at state-run hospitals to be eligible to work overtime at 2.5 times the normal rate of salary, up from 1.5 times. But that incentive, which would be retroactive to Sept. 16 and last through the end of the year, is not tied to the vaccine mandate.
Three people familiar with the negotiations between Hochul's administration and multiple labor unions said the incentive being offered by the administration is for affected health care employees to receive a half-day of vacation if they are vaccinated. That offer, however, is contingent on the unions agreeing that their members would not have contractual rights to use accrued time, such as sick or vacation days, to offset any lost hours while they are suspended.
None of the unions had agreed to the proposal by late Wednesday.
Even before the coronavirus pandemic, hospitals and other medical providers and long-term care facilities were facing a staffing crisis — including group homes for disabled individuals, where some nurses are being forced to work 24-hour shifts.
The state Department of Health estimated this week that about 81 percent of hospital employees have been fully vaccinated. The mandate set to take effect on Monday requires the workers to have at least one COVID-19 vaccination shot.
Last week, a federal judge in Utica issued an order temporarily restraining employers from enforcing the state vaccine mandate on health care workers who have sought a religious exemption.
The ruling by U.S. District Judge David N. Hurd was handed down in a case filed against Hochul, health Commissioner Dr. Howard Zucker — whose resignation was announced Thursday — and state Attorney General Letitia James on behalf of 17 medical professionals. It is scheduled to be argued next week.
