CSEA files lawsuit to block NY vax mandate
Petition is one of at least three that seek to halt mandate set to take effect Monday
Brendan J. Lyons Sep. 23, 2021
ALBANY — The state Civil Service Employees Association as 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.
Related: Dr. Howard Zucker resigns as New York's health commissioner
The legal action is unfolding as Gov. Kathy Hochul's administration has not backed down from the mandate, which 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 state Office of Court Administration issued its own mandate for vaccinations, triggering the legal action by CSEA, which contends the requirement must be negotiated when they involve workers protected by collective bargaining.
The health department's 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 already 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 chose 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 is not calling for the mandate to be rescinded or delayed, urged the state to set up a staffing emergency plan, which may include mutual-aid requests, increased distribution of personal protective equipment 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, the union 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 younger than 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."
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.
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 mandate set to take effect Monday requires the workers to have at least one COVID-19 vaccination shot.