When a city declares a COVID mandate on the public and private sectors, citizens expect the government to uphold it equally across the board. But what happens when it doesn’t?
That’s exactly what happened in New York City earlier this year. While the city terminated nearly 2,000 employees because of their vaccine status, the Mayor made an exception for a very specific group of people. In today’s newsletter, we’ll talk about where New York City currently stands on vaccines and how the “Entertainment Exemption” will affect court cases across the country.
A timeline of events
On October 20, 2021, the Health Commissioner of the City of New York issued Executive Order No. 83 mandating that all New York City employees must show proof that they received at least one dose of the COVID vaccine.
In February 2022, the city fired more than 1,700 New York City employees based on their failure to comply with this order. Among the dismissed, 16 Department of Sanitation workers challenged their termination at the Richmond County Supreme Court in Staten Island.
On October 24, 2022, the justice presiding over the case reinstated these individuals to their full employment status and ruled that they are entitled to back pay from their termination date. (See Garvey, et. al., v The City of New York.) It was a huge win for those affected.
Here’s where it gets interesting…
From an employment law perspective, that information alone is fascinating. What makes it even more interesting is the basis for the court’s decision.
On December 13, 2021, the Commissioner extended the vaccination mandate to employees in the private sector. At that point, everyone was supposed to play by the same rules. What happened next was truly unusual. On March 24, 2022, Mayor Adams enacted Executive Order No. 62.
Under this order, the mayor exempted certain private sector employees from the requirement to vaccinate. Those exempted included athletes, performers, and other artists. Though not described as such, it could be called ‘The Entertainer Exemption.’ Further, on November 1, 2022, Mayor Adams lifted the mandate for all private employees.
The fired workers argued that treating public and private sector employees differently concerning the vaccination mandate was arbitrary, capricious, disparate treatment, and unconstitutional— especially considering the extreme consequences of noncompliance. The court agreed:
Under the NY Constitution Article 1, §11, “No person shall be denied the equal protection of the laws of this state or any subdivision thereof.” The purpose of this clause is to keep “governmental decisionmakers from treating differently persons who are in all relevant aspects alike.” Nicholas v. Tucker, 114 F3d 17, 20 [2d Cir. 1997]. Where government action draws a distinction between classes of people, “the classification must be reasonable and must be based upon some ground of difference that rationally explains the different treatment.” People v. Liberta, 64 NY2d 152, 163 [1984]. Under the NY Constitution Article I, §7, no person may be deprived of life, liberty, or property without due process of the law.
This court finds that based upon the analysis above, the Commissioner’s Order of October 20, 2021, violated the Petitioners’ equal protection rights as the mandate is arbitrary and capricious. The City employees were treated entirely differently from private sector employees, and both City employees and private sector employees were treated entirely differently from [*8] 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.
What’s happened since the judge’s decision?
Several other legal and procedural issues were decided by the court that played into its decision, but for the purposes of this newsletter, we want to focus on how the rights of employees were affected by historically unique circumstances. The court’s decision in Garvey has been appealed, so it will be interesting to see how the higher court decides this issue. We’ll be watching to see if this well-reasoned decision will affect other cases in New York and around the country.
Meanwhile, the United States Supreme Court has rejected an emergency request for a pausing of the city’s vaccine mandate relating to public employees. (See New Yorkers for Religious Liberty, Inc., et. al. v The City of New York, et. al.) The underlying action continues in Federal Court.
Trouble in your workplace?
If there is a lesson to be learned from the fired workers in this case, know that your rights as an employee are always worth fighting for, no matter how daunting the battle may appear.
At Danny Grace PLLC, we believe every person has the right to a workplace free from discrimination and harassment and are committed to seeking justice for those who have been wronged in the workplace. Contact us if this case has inspired you to speak up about your wrongful termination. Our practice offers a free case evaluation, so you can share your circumstances and decide whether to move forward with your case.
We look forward to helping you fight for your workplace rights.
About Danny Grace PLLC
Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace PLLC for a successful outcome on all of your legal needs.
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