Seyfarth Synopsis: In a wide-ranging and high-profile decision, a New York State Supreme Court Justice held that New York City's public- and private-sector COVID-19 vaccination mandates are "arbitrary and capricious" in violation of State law.
On October 20, 2021, New York City mandated that all City employees receive vaccination against COVID-19. On December 13, 2021, the City's Health Commissioner extended the mandate to all private-sector employees in the City. On March 24, 2022, New York City Mayor Adams exempted certain professions from the private-sector employee mandate, such as athletes, performers, and other artists.
The petitioners in Garvey v. City of New York challenged the public employee mandate as arbitrary and capricious under New York State law. They also challenged the private-employee mandate, as well as Mayor Adams' Executive Order which provided exemptions for certain categories of professionals.
On October 24, 2022, the Court held that the public-sector vaccine mandate (1) violated the Separation of Powers doctrine under the New York State Constitution because it exceeded the New York City Board of Health's authority, and (2) was "arbitrary and capricious" because, as the Court noted, "nothing demonstrated . . . as to why there was a vaccination mandate issued for only public employees in October 2021."
Although the private sector vaccine mandate was not the focus of the litigation, the Court also found it to be arbitrary and capricious because it could identify no support in the public record of the need for such a mandate. Specifically, the Court noted the low daily COVID-19 rate when the mandates were enacted (e.g., under 1,500 per day as of October 2021), and characterized that rate as "significantly lower than today's average COVID-19 rates."
Additionally, the Court ordered that the public-employee-Petitioners are entitled to back pay in salary from the date of termination due to vaccine mandate non-compliance. Importantly, the Court did not (and could not) order backpay for private sector employees who were terminated for mandate non-compliance because the Petitioners in this case only represented public-sector employees.
Takeaways: Continued Litigation, Little Impact on Private Sector
This ruling, which is subject to appeal, will likely have minimal impact on the private sector. As we previously reported, NYC has already announced the repeal of its private-employee vaccination mandate, effective November 1, 2022. Thus, at most, private employers can cease requiring vaccination of their employees six days earlier than the planned expiration of the mandate. It remains to be seen whether private-sector employees whose employment was terminated as a result of the private-employee mandate will also seek or be entitled to relief based on this decision.
Seyfarth will continue to monitor developments in this space and provide updates when available.
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