October 24, 2022 was a momentous day for New York City workers.
In an afternoon hearing at the Richmond County Courthouse in Staten Island, New York State Supreme Court Judge Ralph Porzio ruled in favor of 16 Department of Sanitation (DSNY) workers who sued the city after being fired for defying NYC’s COVID-19 vaccine mandate.
The judge’s decision in George Garvey et al v. City of New York et al struck the mandate down not only for the 16 named plaintiffs and other DSNY employees, but for all New York City municipal workers. As the plaintiffs’ attorney Chad LaVeglia put it, “We just defeated the vaccine mandate for every single city employee.”
Although the city filed an appeal later the same day, LaVeglia told me he believes the lack of a clear emergency makes it unlikely to succeed, since the mandates were issued as executive orders on the basis of a state of emergency.
NYC Mayor Eric Adams has kept the city’s COVID-19 state of emergency in place, but Governor Kathy Hochul allowed New York State’s state of emergency to expire in September and federal officials including President Biden have echoed the view that the pandemic crisis has passed.
Watch Chad LaVeglia and DSNY workers speak outside the courthouse after their victory in the video above.
Judge Porzio’s decision called the mandate unconstitutional, arbitrary and capricious, and a violation of due process, giving the plaintiffs a win on all claims except for breach of contract.
During the hearing, Porzio acknowledged the New York City Commissioner of Health and Mental Hygiene’s authority to issue a public health mandate. But he went on to say that the commissioner cannot create a new condition of employment for NYC employees, prohibit employees from reporting to work, or fire them.
Porzio also said that the mayor did not have the authority to exempt certain workers from the mandate, which Mayor Eric Adams did when he issued Executive Order 62 in March 2022, exempting certain performers and athletes from vaccine mandates in a move that was widely criticized for creating a weakness in the city’s legal position when it was issued. Porzio bore that criticism out in his decision, pointing to it as one of the factors that rendered the mandate arbitrary and capricious.
Porzio: Flawed Vaccines, Unfounded Mandate
The judge also discussed the broader context of the mandate during the hearing, pointing to the widespread acknowledgment that COVID-19 vaccines have failed to prevent individuals from transmitting or contracting the virus, recent guidelines from the CDC that recommend against treating vaccinated and unvaccinated individuals differently, and Governor Kathy Hochul’s decision in September to allow New York State’s COVID state of emergency to expire.
He also mentioned President Biden’s recent statement that “The pandemic is over,” and cited CDC Director Rochelle Walensky’s recent announcement that she has tested positive for COVID as a prominent example of vaccinated and boosted individuals contracting the virus.
Judge Hails City Workers’ Pandemic Performance
Judge Porzio devoted a significant portion of the hearing to praising the dedication and performance of New York City workers during the height of the pandemic. He recalled former Mayor Bill de Blasio calling on sanitation workers to report for work during the period before vaccines were available.
“Without fanfare, they did their job,” he said. “They worked without protective gear. They were infected with COVID-19. . . .” The judge called the decision to require recently infected workers to be vaccinated when some studies showed that to be inadvisable another instance of an arbitrary and capricious approach.
“Sanitation workers came to work,” Porzio said, “and their reward, when for whatever reason they chose not to be vaccinated, was to lose their jobs.” He underscored the arbitrariness of the decision to require a vaccination that may provide some personal protection but has not prevented the virus from spreading: “The petitioners should not have been terminated for choosing not to protect themselves.”
Porzio: Mandate Was About Compliance, Not Just Safety
The vaccine mandate for city workers, said Judge Porzio, was not just about public health and safety, but about compliance. Porzio asserted that if public health and safety had truly been the only motivations for the mandate, there would have been no delay in putting unvaccinated workers on leave once the mandate was issued.
He again took issue with the selective application of the mandate, saying that if public safety were the basis of the mandate, it would have been applied to all New York City residents, without exemptions.
The Judge’s Orders
“It is time for the City of New York to do what is right and just,” Porzio said at the hearing. With that, he granted the petition and ordered that a declaratory judgment be granted:
The Commissioner of Health and Mental Hygiene's order dated October 20, 2021 violates the:
separation of powers doctrine under the New York State Constitution, article III, section 1
petitioners’ equal protection rights under the New York State Constitution, article I, section 11
petitioner's substantive and procedural due process rights pursuant to the New York Constitution, article I, section 6
Porzio further ordered that:
the Commissioner of Health and Mental Hygiene's order dated October 20, 2021 be deemed arbitrary and capricious pursuant to Civil Practice Law and Rules (CPLR) section 7803
the Commissioner of Health and Mental Hygiene's order dated December 13, 2021 be deemed arbitrary and capricious pursuant to CPLR section 7803
the Mayor's executive order 62 be deemed arbitrary and capricious pursuant to CPLR section 7803
The one claim he denied was for breach of contract.
Porzio then order that the terminated petitioners be reinstated to their full employment status effective October 25, 2022 at 6:00 a.m.
“Now you all go to work,” he said. “We need you, and we thank you for your service.”
What About Back Pay?
While the court’s decision did not explicitly address back pay or any other compensation for workers who were terminated or put on leave without pay for defying the mandate, LaVeglia told us it opens the door to demands for back pay.
“They should get it automatically,” he said, since “they were let go based on a mandate that was unconstitutional and arbitrary.” LaVeglia said the multiple successful claims against the city strengthened workers’ position. “The city cannot deny them back pay,” he said, “given the magnitude of the ruling.”
[CORRECTION: The written court decision does order back pay for the petitioners. Judge Porzio did not say that during the hearing, and the conversation with Chad LaVeglia above took place before the written decision had been published. See this update for details on back pay.]
Judge Strikes Down NYC Vaccine Mandate as DSNY Worker Lawsuit Prevails