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“There is nothing in the record to support the rationality of keeping a vaccinating mandate for public employees, while vacating the mandate for private sector employees or creating a carveout for certain professions, like athletes, artists, and performers. This is clearly an arbitrary and capricious action…”
–JUDGE RALPH J. PORZIO, NEW YORK SUPREME COURT
In an unyielding rebuke of current and former New York City leaders, New York Judge Ralph J. Porzio ordered the reinstatement of municipal employees fired for violating the city’s
vaccine mandate, a requirement that Porzio declared to be “arbitrary and capricious.” Porzio also ordered that all employees receive back pay from their date of termination.
There’s much to be said of this ruling, from the jurisdiction of its application to the morality, or lack thereof, pertaining to the vaccine mandates. While the Standing for Freedom Center does not take a position on the COVID vaccine itself, we do take a position on the freedom to receive or refuse it — freedom that should be protected for every American.
From 2021 to 2022, several employer vaccine requirements were implemented by former New York City Health Commissioner Dave Chokshi, former Mayor Bill de Blasio, and current Mayor Eric Adams. The Commissioner’s Order of October 20, 2021, required “employees of all City agencies and of all human services contractors of City agencies to show proof of vaccination.”
The order was advanced with the Commissioner’s Order of December 13, 2021, ordering that not just city workers and some contractors but also private contractors “must provide proof of vaccination against COVID19 to a covered entity before entering the workplace, and a covered entity must exclude from the workplace any worker who has not provided such proof.”
In March 2022, New York City Mayor Eric Adams issued Executive Order No. 62, which provided exemptions to the vaccine mandate to athletes and artists, even though, per the exemption, these athletes, performers, and artists are known to regularly operate in areas covered by the mandate.
This discrimination was called out by union leaders, and not exactly denied by Mayor Adams, who said, “By putting our home teams on (an) equal playing field, we increase their chances of winning and that has a real impact on our city.”
Harry Nespoli, chair of the Municipal Labor Committee representing 350,000 city workers, had different thoughts, saying, “There can’t be one system for the elite and another for the essential workers of our city.”
Police officer Pat Lynch, who also serves as the president of the 23,000-member Police Benevolent Association, said, “If the mandate isn’t necessary for famous people, then it’s not necessary for the cops who are protecting our city in the middle of a crime crisis.”
Around the same time as the March order, Adams said he had no plan to re-hire unvaccinated employers.
Porzio pulled no punches in stating what millions of fair-minded American citizens have been saying since late 2020 — that is, the government should be logical about the laws, be mindful of the citizens’ freedoms, and if you’re going to be draconian, at least be consistent. Porzio began his concluding opinion by disarming the health commissioner from having a say in citizens’ employment status.
“The Health Commissioner cannot create a new condition of employment for city employees… cannot prohibit an employee from reporting to work… cannot terminate employees.”
Porzio then affirmed the right of citizens to protect themselves or not, while also recognizing the ineffectiveness the vaccine has against transmission and contraction.
“Being vaccinated does not prevent an individual from contracting or transmitting COVID-19. As of the day. Of this Decision, CDC guideline regarding quarantine and isolation are the same for vaccinated and unvaccinated individuals. The Petitioners should not have been terminated for choosing not to protect themselves. We have learned through the course of the pandemic that the vaccine against COVID-19 is not absolute. Breakthrough cases occur, even for those who have been vaccinated and boosted.”
Porzio also acknowledged the inconsistency between applying the law to some and not others.
“There is nothing in the record to support the rationality of keeping a vaccinating mandate for public employees, while vacating the mandate for private sector employees or creating a carveout for certain professions, like athletes, artists, and performers. This is clearly an arbitrary and capricious action because we are dealing with identical unvaccinated people being treated differently be the same administrative agency.”
The term “arbitrary and capricious” is a standard in judicial review that aids in determining whether a lower court ruling or law was reasonably based.
Porzio was not shy in exposing the absurdity that non-vaccinated employees, deemed by the state to be a termination-level threat to society, remained on full-time status until their appeals were denied or accepted. If they were such a threat, it raises the question of why they were allowed to stay on full-time status.
“Though vaccination should be encouraged, public employees should not have been terminated for their non-compliance. Over 79% of the population in New York City are vaccinated. These unvaccinated employees were kept at full duty while their exemptions were pending. Based upon the Petitioners’ vague denials of their exemptions, the fact they were kept at full duty for several months while their exemptions were pending, the Mayor’s Executive Order granting exemption to certain classes of people, and the lifting of the private sector mandate, this Court finds the Commissioner’s Order of October 20, 2021, and December 13, 2021, as well as the Mayor’s Executive Order No. 62 to be arbitrary and capricious.”
Porzio then went to the defense of medical professionals, who risked their lives to save others in the early months of the pandemic while the majority of the country was safe at home.
“…this is not a commentary on the efficacy of vaccination, but about how we are treating our first responders, the ones who worked day-to-day through the height of the pandemic…They worked without protective gear. They were infected with COVID-19, creating natural immunity. They continued working full duty while their exemption requests were pending. They were terminated and are willing to come back to work for the City that cast them aside.”
Porzio went so far as to call the bluff of the mayor and health commissioner by saying in defense of medical staff and essential workers:
“The vaccination mandate for City employees was not just about safety and public health; it was about compliance. If it was about safety and public health, unvaccinated workers would have been placed on leave the moment the order was issued. If it was about safety and public health, the Health Commissioner would have issued city-wide mandates for vaccination for all residents. In a city with nearly 80% vaccination rate, we shouldn’t be penalizing the people who showed up to work, at great risk to themselves and their families, while we were locked down.”
He added,
“If it was about safety and public health, no one would be exempt. It is time for the city of New York to do what is right and just.”
Following Porzio’s opinion are his orders, the most poignant of which declares that the executive orders issue by the health commissioner and mayor violated the employees’ equal protection rights and substantive and procedural due process rights. The orders also affirm that the Commissioner “lacks the power and authority to permanently exclude the petitioners from their workplace.” The orders further declare the mandates to be “arbitrary and capricious.”
The orders then state that the petitioners (employees) are “hereby reinstated to their full employment status, effective October 25, 2022” and that they are “entitled to back pay in salary from the date of termination.”
Porzio concluded by saying:
“The City employees were treated entirely differently from private sector employees, and both City employees and private sector employees were treated entirely differently from athletes, artists, and performers. All unvaccinated people, living or working in the City of New York are similarly situated. Granting exemptions for certain classes and selectively lifting of vaccination orders, while maintaining others, is simply the definition of disparate treatment. Furthermore, selective enforcement of these orders is also disparate treatment.”
It is unclear how far the ruling will reach, though at this point it appears it will impact city workers but not private workers or contractors. If isolated to city workers, between 1,200 and 1,500 employees will be reinstated and given backpay.
In New York, the supreme court is not “supreme.”
It’s important to note that while most states refer to their high court as their supreme court, a few states do things differently. In New York, the supreme court is not the highest judicial tier; indeed, it’s actually the lowest, the trial court. From New York’s Supreme Court tier, the next level is the New York Appellate Divisions and from there the New York Court of Appeals, which serves as the highest court in the state, or the court of last resort.
So, a New York Supreme Court decision essentially carries the same weight as most states’ district or circuit court decisions.
The decision has been appealed to New York’s Appellate Division, which equates to most states’ courts of appeals, the intermediate judicial level between the trial courts and high court. It’s also important to note that Judge Porzio is a conservative jurist from a strongly conservative region. Thus, the appellate court may see things differently than Porzio.
For a biblical perspective on this matter, and for a strong rebuke of churches that bent the knee to draconian measures, read “A Broad Religious Objection to Vaccine Mandates” by Dr. Tim Yonts.
Follow John on Twitter! @JohnWesleyReid
Ready to dive deeper into the intersection of faith and policy? Head over to our Theology of Politics series page where we’ve published several long-form pieces that will help Christians navigate where their faith should direct them on political issues.
