Judge rejects vaccine request

A patient receives a vaccine dose for protection against COVID-19. Tribune News Service

A U.S. district judge dismissed nine state security guards’ request Thursday for a temporary restraining order against the COVID-19 vaccine mandate for state health care workers who directly work with patients.

Nine downstate members of the New York State Correctional Officers & Police Benevolent Association filed a lawsuit against Gov. Kathy Hochul, state Health Department Commissioner Dr. Howard Zucker, the state Health Department and the state Public Health and Planning Council on Thursday with the request for the restraining order.

Judge Brenda Sannes of the U.S. District Court in the state’s Northern District dismissed the request early Thursday evening. The decision was not immediately available.

“The mandate coerces plaintiffs as employees or affiliates of hospitals into accepting unwanted medical care in violation of their constitutional right to equal protection, privacy, bodily autonomy, personal liberty and due process,” according to the 21-page suit.

The complainants will pursue their lawsuit and argue the Health Department’s Aug. 18 order mandating personnel employed with a general hospital or nursing home be fully vaccinated against COVID-19 by Monday, or face termination, violates their 14th Amendment rights and discriminates against certain state workers.

Former Gov. Andrew Cuomo announced Aug. 16 all patient-facing health workers in the state must be vaccinated against COVID-19 by Monday, Sept. 27.

The department’s Public Health and Health Planning Council voted to approve the controversial mandate Aug. 26.

“We don’t comment on pending litigation,” Haley Viccaro, Hochul’s senior adviser for communications, said in a statement Thursday.

Governor’s office representatives would not say how or if Hochul is open to amending the mandate.

“Nothing further to say at this time,” Viccaro said.

The state Department of Corrections and Community Supervision also declined to comment, citing the pending litigation.

The guards named in the suit live and work downstate, with eight from New York City and Long Island and the ninth from Orange County.

The union has about 20,000 active members, with roughly 2,000 who work as law enforcement officers outside state prison facilities.

About 200 of that group are subject to the vaccinate or termination mandate that goes into effect Monday, and work as guards in applicable state facilities such as SUNY hospitals or state Office of Mental Health psychiatric wards.

Union counsel is waiting for oral arguments to be scheduled. None were scheduled as of Thursday night, but union counsel expect an update in the coming days.

New York teachers can test negative for the coronavirus each week if they refused a COVID vaccine, but do not face termination.

“We make a substantial argument in our complaint and the application for the restraining order that our clients are being treated differently than teachers,” said plaintiffs’ attorney Dennis Vacco, partner with Lippes Mathias Wexler Friedman LLP.

Vacco served as the state attorney general under Gov. George Pataki from 1995 to 1998.

“While the state might argue that teachers are not in health care facilities where people are sick, our position is, in relation to COVID, teachers are in an environment where, inherently, there are fewer people that are vaccinated,” Vacco said of school-age children.

The vaccine has not been approved for children under age 12.

“The basis for our lawsuit is that our client’s constitutional rights of the 14th Amendment are being violated by the state action toward them,” Vacco said. “In these educational settings, they’ve mandated the students wear masks ... the state is recognizing the vulnerability of the students, yet, they are not mandating in the same fashion the vaccination like they are the health workers. The state has no rational basis for treating the health care workers differently than they are treating educators.”

The remaining 18,000 members of NYSCOPBA are comprised of corrections officers and staff who work at state prisons. They are subject to the vaccine mandate for state employees with a test-out option that takes effect Oct. 7.

It is unclear what will become of employees and COs who refuse to get vaccinated before the deadline.

“The Department is awaiting guidance from the Governor’s Office of Employee Relations,” DOCCS spokesman Thomas Mailey said in a statement Thursday.

NYSCOPBA was one of several state unions to meet with the governor’s office early this week to negotiate the vaccine mandate. The corrections officers’ union went forward with its litigation after the entities reached an impasse Tuesday.

“The plaintiffs had no other resource,” union attorneys said.

Counsel are weighing challenging the subsequent mandate.

“We’ll wait and see what happens with this application before we make any decision on the next piece of this,” Vacco said.

Members are willing to comply with a vaccine requirement with a test-out option.

As of Sept. 9, the department had nearly 25,500 employees and 17,600 security staff, Mailey said.

The COVID-19 vaccination rate of NYSCOPBA’s members remains unknown.

“Since the vaccine has not been mandatory, staff have not been required to report to DOCCS if they have signed up independently for the vaccine to be administered in the community,” Mailey said. “Therefore, we do not have a complete staff vaccine number.”

Union counsel on Thursday said the vaccine rate among members is estimated between 40% and 60%, but without a mandate for all workers, the figure remains inexact. The local community vaccination rate near each facility is the best guess, they said.

Each incarcerated New Yorker housed in DOCCS correctional facilities has been offered a vaccine. The state had 31,873 incarcerated people as of Sept. 17.

The department reports 15,679 or 49.2% of incarcerated individuals have received the vaccine as of Tuesday.

DOCCS has completed clinics at all facilities, and the department continues to re-poll all facilities for interest in receiving the vaccine and has additional clinics scheduled, Mailey said.

A judge recently blocked the vaccine mandate from taking effect for workers who have a religious exemption or are seeking one. The state plans to defend the mandate in court.

Hochul has said previously the state intentionally did not include a religious exemption in the mandate and has noted religious leaders worldwide have encouraged people to get vaccinated against COVID-19.

Tribune News Service contributed to this report.

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