Dear Members,
We are in receipt of the Department’s order, dated September 8, 2021, mandating that effective Monday September 13, 2021, all MOS must either:
- Provide proof of vaccination for COVID-19 to the NYPD Medical Division; or
- Provide proof of a negative COVID-19 PCR test within the preceding seven (7) days.
This mandate further requires all unvaccinated MOS to undergo PCR testing outside of working hours, at least once every seven days, and the proof of, and results from, the PCR testing must be submitted in a timely manner to the Department’s Centralized Personnel Resource (“CPR”) System. Overtime to obtain a PCR test will not be approved. Finally, the Commissioner stated that failure of unvaccinated MOS to undergo such weekly PCR testing will result in the member of the service being placed on leave without pay status. “Members of the Service who fail to comply . . . will not be permitted to work and will be ineligible to receive pay for each day of noncompliance,” according to the mandate.
It is the position of the DEA that this new mandate constitutes a violation of the New York City Collective Bargaining Law, given that the unilateral implementation of this new plan impinges upon a number of mandatory subjects of bargaining, specifically: overtime; use of accrued leaves (e.g. comp time, personal days, etc.); and Departmental policies/procedures related to non-mandatory subjects of negotiations.
Consequently, the DEA is currently in the process of preparing to file an Improper Practice Petition before the New York City Board of Collective Bargaining to prevent the Department from unilaterally implementing what we believe is an illegal mandate.
Furthermore, the DEA is in communication with the other police unions that represent the other uniformed ranks within the Police Department and anticipate that we all will be filing a joint Improper Practice Petition.
Moreover, this new mandate fails to account for MOS who have received valid medical or religious exemptions from vaccination, under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990. Such failure to account for these federal statutes, and the rights contained therein, may give rise to civil actions, either on an individual or class basis, in federal court.
Finally, the DEA implores all of its unvaccinated members who undergo said PCR testing on their own time, to complete and submit all of the necessary paperwork for the respective receipt of overtime. Although it is likely that the request for overtime will be denied by the Department in light of this new order, the DEA needs this documentation in order to pursue proposed litigation, especially since requiring an employee to undergo medical testing on his/her own time constitutes compensable hours of work under applicable federal, State, and City laws.
We will keep you apprised of our progress on this most important issue.
Paul DiGiacomo
and the DEA Board of Officers
