Courts Waffle on Vaccine Mandates for Municipal Workers

NEW YORK — New York is keeping its COVID-19 vaccine mandate for municipal workers for now while Washington, D.C., is losing its mandate because of recent judges’ decisions.

The differing court rulings within days of each other add to confusion nationwide over how far cities can go in ordering their workers to get vaccinated.

On Monday, U.S. Supreme Court Justice Sonia Sotomayor declined to block New York City from enforcing its mandate for vaccinations against COVID-19.

In both New York and Washington, employees of the cities’ police departments argued in court filings that decisions on vaccines were a matter of privacy and personal discretion. They said the mandates violate the 14th Amendment’s due process clause.

Sotomayor’s decision was based on an appeal by Detective Anthony Marciano. He sought a stay on the vaccination requirement while his appeal progressed through the federal court system.

A district court judge dismissed Marciano’s lawsuit in March, which led to his appeal. The Supreme Court has assigned Sotomayor to handle interim issues like a stay of execution in New York and other states.

Marciano’s lawsuit argues that no law can require the government to require adults to be vaccinated without their “informed consent.” He added that “he cannot and will not assume the health risks associated with an illegal, experimental” vaccine that he “does not need.”

The Food and Drug Administration has approved COVID-19 vaccines and does not classify them as experimental.

New York City’s health department ordered city workers to get vaccinated in October 2021 at risk of losing their jobs. In February, 1,430 of the non-complying municipal workers were fired.

Marciano filed his lawsuit about two months before the firings. He remains on the job pending his appeal.

After his lawsuit was transferred from state to federal court, U.S. District Judge Jed Rakoff rejected Marciano’s argument that the 14th Amendment grants adults a “right to bodily integrity” when larger public health issues are at stake.

The case is now pending before the Manhattan-based 2nd U.S. Circuit Court of Appeals.

In Washington, a judge reached a different conclusion last week when he said the mayor exceeded her authority by ordering vaccinations for local government employees.

District of Columbia Superior Court Judge Maurice A. Ross said the mandate violates the privacy of employees who object to receiving the vaccines.

He also said Mayor Muriel Bowser exceeded her authority by ordering city workers to get vaccinated, obtain a religious or medical exemption or face discipline. The discipline could lead to job loss.

“A vaccine mandate is not an everyday exercise of power,” Ross wrote in his ruling. “It is instead a significant encroachment into the life — and health — of an employee.”

He added, “It is undisputed that the mayor has a strong interest in combating the spread of COVID-19. However, our system does not permit the mayor to act unlawfully even in the pursuit of desirable ends.”

The court judgment responded to a lawsuit filed against Bowser and the city by the Washington, D.C., Police Union and other police groups.

The judge ordered that all disciplinary action against unvaccinated city employees cease. In addition, the city must offer “full reimbursement to be provided to all [Fraternal Order of Police] members for any loss of benefits, pay, or rights and all related disciplinary proceedings to be expunged from their records,” Ross wrote.

Under Bowser’s original schedule, they were required to offer proof they were vaccinated and boosted by Feb. 15. The tiered disciplinary procedures started a month later.

Washington, D.C., Police Chief Robert J. Contee III told the city council in March he was losing recruits who refused to get vaccinated.

The Bowser administration issued a statement after the judge’s ruling that said Ross “misunderstood the strength and diversity of the authorities we relied upon in issuing the employee vaccination mandate.”

It said the city would comply with the order but continue to encourage employees to get vaccinated.

Tom can be reached at [email protected] and @TomRamstack