An Urgent Message from the President Regarding the Vaccine Mandate
As many of you have heard, Justice Lyle Frank issued a decision just a short time ago (on September 23, 2022) invalidating the Vaccine Mandate to the extent it has been used to impose a new condition of employment on Police Officers, and is invalid to the extent that it seeks termination of Police Officers for noncompliance with the Mandate. We finally have a Judge who has issued a common sense, rational decision and who confirms what we have said since day one of the Mandate — the mandate is illegal; you cannot retroactively apply a new condition of employment and fire members without any due process at all.
It is unclear at this point in time what the next steps will be as we have just been informed that the NYC Law Department will be immediately appealing the Judge’s decision and seeking a stay of its enforcement. We will join the PBA in vigorously opposing that stay. As we previously advised, we were in court on Wednesday, September 21, 2022, side-by-side with the PBA arguing our respective lawsuits challenging the illegal and irrational Vaccine Mandate. Although our lawsuits raise similar issues, we also raised additional issues as to the threat to public safety this Mandate poses. As we said, the Court denied the City’s attempt to have our case dismissed, and has ordered the City to submit further arguments within 10 days as to why our lawsuit should not be granted. So, our suit is moving forward while the City appeals the decision rendered earlier today (September 23, 2022). Our position is clear: there should be no more members placed on leave without pay, or dismissed, while these cases are pending.
We will continue to vigorously press our case and will keep the membership advised of all developments as soon as they occur.
Here’s the backstory:
As we advised earlier this week on September 20 and 21, 2022, the DEA appeared in NYS Supreme Court on Wednesday, September 21, 2022, for arguments before Justice Lyle Frank in our latest lawsuit challenging the Vaccine Mandate as arbitrary, capricious, and illegal. The DEA is asking the Court to end the Mandate in light of the existing violence and crime in New York City which requires more, not less, Detectives on the street, and in light of the Mayor’s lifting the Mandate for the private sector employees and multi-million dollar athletes, and in light of evolving science which has shown that the Vaccine simply does not prevent transmission of the virus.
Although the City attorneys asked the court to dismiss our lawsuit on various grounds, we are pleased to advise that Judge Frank has denied the City’s motion and has ordered our case to proceed forward on the merits! The court directed the City to submit further arguments within 10 days as to why our lawsuit should not be granted. It is unclear how soon after that the Court will issue a final order on the merits of our case.
Be assured that we will keep you advised of any developments as soon as they occur.
Here’s the backstory:
As of September 20, 2022
Since the imposition of the COVID-19 Vaccine Mandate by former Mayor Bill de Blasio late last year, the DEA, along with numerous other NYC uniformed and civilian unions, has filed legal challenges to the Mandate in both State and federal courts. The DEA has challenged the Mandate on the basis that the Mandate was arbitrary, capricious, illegal, and unconstitutional. The DEA’s unwavering position has been, and continues to be, that the decision as to whether to be vaccinated or not is a personal medical decision, and one which should be left to the individual members, in consultation with their families and their physicians.
Unfortunately, as you know, the federal and State courts have not been receptive to our arguments, and similar arguments made by scores of other unions in NYC, NYS, and throughout the USA. And even though the DEA has won certain concessions — such as modifications to the City’s and NYPD’s medical and religious reasonable accommodation (“RA”) process — the Vaccine Mandate has consistently been upheld by the courts, including the U.S. Supreme Court. As recently as last week, in a decision issued by a Justice of the Supreme Court, New York County, the Mandate was upheld and found to be a legal exercise of government power and the court refused to overturn it. In summary, while individual DEA members who have had their RA requests denied may file a legal challenge specific to the denial of their RA, the courts will not invalidate the Mandate itself.
Looking to try a different approach, the DEA recently filed suit against the Mayor and the NYPD challenging the Mandate as arbitrary and capricious, in light of the increased threat to public safety posed by firing Detectives and other Police Officers during such a violent and dangerous time in our City. Although the Court denied our request for a temporary restraining order, our underlying lawsuit still stands. We have asked for, and the Judge has granted, oral arguments on these issues. Our attorneys will be in NYS Supreme Court tomorrow morning at 11:00 a.m. arguing the case in front of Judge Lyle Frank. We will also be specifically addressing with Judge Frank the latest announcement by the Mayor lifting the Vaccine Mandate for the private sector.
Although, to the best of our knowledge, the private sector Vaccine Mandate has never been enforced, lifting the Mandate for the private sector is a slap in the face to our members, as it makes absolutely no sense to continue to have the Mandate apply to our members and other public sector employees while lifting it for everyone else. The Mandate should be ended for everyone.
In addition to our pending court challenge, we have contacted the Mayor directly and have strongly urged asked him to end the Mandate, or, at a minimum, stop any pending terminations until the Court issues its decisions on the case.
We will keep you advised of the result of Judge Frank’s decision and our efforts with City Hall.
Paul DiGiacomo
President
