Supreme Court, New York County, September 29, 2021

Stroock, Stroock & Lavan, LLP, New York City (Alan Klinger and Dina Kolker of counsel), and Greenberg Law Office (Harry Greenberg of counsel) for petitioners.

Georgia M. Pestana, Corporation Counsel, New York City (Kimberly Brown and Eric Eichenholtz of counsel), for respondents.

In an interim order dated September 22, 2021 (New York City Mun. Labor Comm. v City of New York, 2021 NY Slip Op{**73 Misc 3d at 623}32051[U] [Sup Ct, NY County 2021]), issued after oral argument held on September 22, 2021, this court vacated its previously issued temporary restraining order, issued September 14, 2021. Subsequent to the issuing of said interim order, this court became aware that the Honorable Brian M. Cogan, USDJ, ED NY, issued a decision and order denying the identical relief in a related action filed by a number of individual teachers entitled Maniscalco v New York City Dept. of Educ. (2021 WL 4344267, 2021 US Dist LEXIS 184971 [ED NY, Sept. 23, 2021, 21-cv-5055 (BMC)]). Said order was appealed to the United States Court of Appeals, Second Circuit which issued a temporary restraining order on September 24, 2021, which was subsequently vacated on September 27, 2021. Now, upon the foregoing documents, petitioners' petition and respondents' cross motion seeking to dismiss the petition are decided as follows:

Petitioners commenced the instant action by filing a verified petition on September 9, 2021. Said petition seeks to vacate, pursuant to CPLR article 78, the Order of the Commissioner [*2]of Health and Mental Hygiene to Require COVID-19 Vaccination for Department of Education Employees, Contractors, and Others, dated August 24, 2021 (the order); and to enjoin respondents the City of New York, the New York City Department of Health and Mental Hygiene (DOHMH), and the Board of Education of the City School District of the City of New York (DOE) (collectively respondents) from implementing the order.

As noted in this court's interim order, there is significant public interest in this matter, which will have a direct impact on the approximately one million children enrolled within the New York City school system, their parents and school-based employees who have already persevered through the COVID-19 crisis. DOE employees, City employees, contractors and others who work within the school system have already endured much over these last 18 months while providing education both virtually and in person for our children. The court also cannot ignore the fact that the vast majority of school-based employees are already in compliance with the Commissioner's order. In fact, the latest reported numbers indicate that 87% of school-based employees and 91% of teachers are in compliance with the numbers growing daily.

All of us have been navigating uncharted waters over these last 18 months as we have endured and sought to end the COVID-19 nightmare. The social and economic impact along{**73 Misc 3d at 624} with the illness, death and fear it has wrought cannot be overstated, but at the same time health and government officials have been pursuing a continuously evolving effort to put COVID-19 behind us and provide for the safety and health of all. While these efforts have shifted from closures, to restricted activities, to mask wearing, to testing, to vaccines, the goal remains the same—safety and health. Putting an end to this scourge that has brought serious illness to millions and caused the deaths of over 690,000 people within the United States.

The vast majority believe that vaccination is the most effective tool to combat COVID-19, demonstrated by the high vaccination rates among school-based staff and recent reporting of an adult New York City vaccination rate of 82% and growing.

At the same time, we recognize that personal freedom is a cornerstone of our American ideals. Here, a vocal minority passionately oppose vaccination. Their beliefs are based on a myriad of arguments, including medical or religious concerns; unknown long-term vaccination risks versus COVID-19 exposure; and simply personal freedom. The difficult task for the court is balancing the needs of the vast majority against the beliefs of the few.

On August 23, 2021, DOHMH Commissioner Chokshi announced a vaccination mandate for all employees in the City school district, and on August 24, 2021, DOHMH imposed said order, which requires all DOE staff, City employees, and contractors who "work in-person in a DOE school setting or DOE building"; and "[a]ll employees of any school serving students up to grade 12 and any UPK-3 or UPK-4 program that is located in a DOE building who work in-person, and all contractors hired by such schools or programs to work in-person" to—no later than September 27, 2021—provide proof that they (a) have been fully vaccinated; (b) have received a single dose vaccine; or (c) have received the first dose of a two-dose vaccine, and must additionally provide proof that they have received the second dose within 45 days of the initial inoculation.

Concurrent with the filing of the instant action, petitioners filed an order to show cause seeking a temporary restraining order and preliminary injunction, granting the relief demanded in the petition. On September 14, 2021, this court signed said order to show cause, scheduling oral argument on September 22, 2021, at 12:00 p.m. and temporarily restraining respondents from implementing the Health Department order pending{**73 Misc 3d at 625} the hearing on September 22, 2021. [*3]This court was aware that a fuller review would be required prior to addressing the sought-after preliminary injunction but issued said temporary restraining order solely because the Department of Health and Mental Hygiene order's mandate did not reference the possibility of any medical or religious exemption.

The day following the issuing of the temporary restraining order, September 15, 2021, the Commissioner of Health and Mental Hygiene rescinded and restated the DOHMH's prior orders dated August 24, 2021, and September 16, 2021, to include the following clarifying language: "Nothing in this Order shall be construed to prohibit any reasonable accommodations otherwise required by law." This newly issued order (the new order) entirely obviates this court's reason for issuing the temporary restraining order.

A preliminary injunction is appropriate when the party seeking injunctive relief establishes: (1) likelihood of ultimate success on the merits; (2) irreparable injury if the injunction is not granted; and (3) a balancing of the equities in its favor. (See Four Times Sq. Assoc. v Cigna Invs., 306 AD2d 4, 5 [1st Dept 2003], citing W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]; CPLR 6301, 6311.) The elements to be satisfied must be demonstrated by clear and convincing evidence. (Liotta v Mattone, 71 AD3d 741 [2d Dept 2010].) However, the moving party is only required to make a prima facie showing of its entitlement to a preliminary injunction, not prove the entirety of its case on the merits. The decision to grant a motion for a preliminary injunction "is committed to the sound discretion of the trial court." (N.Y. County Lawyers' Assn. v State of New York, 192 Misc 2d 424, 428-429 [Sup Ct, NY County 2002]; see also Terrell v Terrell, 279 AD2d 301, 304 [1st Dept 2001].)

Having resolved the issue of appropriate medical and religious exemptions with the new order, petitioners' sole argument is that the new DOHMH order violates school-based employees substantive due process rights by threatening their personal autonomy, bodily integrity and right to reject medical treatment. Petitioners argue that since the Supreme Court of the United States' decision in Jacobson v Massachusetts (197 US 11 [1905] [holding that a fine imposed on plaintiff for declining to comply with a mandatory smallpox vaccination did not violate his constitutional rights under a rational basis review]), the law in the area of mandatory vaccinations has substantially changed. In support of this argument petitioners cite Griswold{**73 Misc 3d at 626}v Connecticut (381 US 479 [1965] [contraception]); Loving v Virginia (388 US 1 [1967] [marriage]); Roe v Wade (410 US 113 [1973] [abortion]); Lawrence v Texas (539 US 558 [2003] [same-sex intimate sexual relations]); and Obergefell v Hodges (576 US 644 [2015] [same-sex marriage]). As the court noted within its interim order vacating the temporary restraining order, this line of cases is not germane to the issues here—those cases and their findings speak for themselves while the case before this court addresses the sole issue of whether vaccination may be compelled as a condition of employment.

[1] Since Jacobson, the state and federal courts have consistently held that a mandatory vaccine requirement does not violate substantive due process rights and properly falls within the State's police power. (See Phillips v City of New York, 775 F3d 538, 542 [2d Cir 2015] [holding that New York's mandatory vaccine requirement did not violate substantive due process rights as the vaccinations were within the State's police power, and individual liberties did not overcome its judgment that such vaccination was in the interest of the population as a whole]; Caviezel v Great Neck Pub. Schs., 500 Fed Appx 16, 19 [2d Cir 2012]; C.F. v New York City Dept. of Health & Mental Hygiene, 191 AD3d 52, 69 [2d Dept, Dec. 23, 2020] [holding that the City of New York's measles vaccine mandate did not violate the due process rights secured by the [*4]Fourteenth Amendment].)

Petitioners' arguments that

"[f]undamentally, the Order violates employees' individual bodily integrity and right to refuse medical treatment by forcing employees to undergo unwanted medical procedures or be precluded from engaging in their chosen professions [and] [m]oreover, the Order violates employees' due process rights by involuntarily preventing permanently-appointed DOE and City employees declining vaccination from engaging in their employment, resulting in a deprivation of their vested property rights without due process," are similarly without merit.

Petitioners' Fourteenth Amendment due process arguments simply do not stand up to scrutiny. The analysis by Judge Cogan's related decision articulates the issue perfectly in Maniscalco (2021 WL 4344267, *2-3, 2021 US Dist LEXIS 184971, *5-7):

"The Supreme Court 'has indicated that the liberty {**73 Misc 3d at 627}component of the Fourteenth Amendment's Due Process Clause includes some generalized due process right to choose one's field of private employment.' Conn v. Gabbert, 526 U.S. 286, 291-92 (1999). This right is 'subject to reasonable government regulation.' Id. at 92; see, e.g., Dent v. West Virginia, 129 U.S. 114 (1889) (upholding a requirement of licensing before a person can practice medicine). To 'rise to the level of a violation of the Fourteenth Amendment's liberty right to choose and follow one's calling,' government regulation must result in more than a 'brief interruption.' Id. 'Instead, the Supreme Court, [the Second] Circuit, and the other Circuits addressing the issue have all indicated that the right of occupational choice is afforded Due Process protection only when a plaintiff is completely prohibited from engaging in his or her chosen profession.' Hu v. City of New York, 927 F.3d 81, 102 (2d Cir. 2019) (quotations and citations omitted). Courts in this Circuit have held that unless the defendants denied plaintiff 'all opportunities to practice' in a chosen profession, then there was no substantive due process violation, even if the defendants' 'actions made it more difficult' to do so. Marino v. City Univ. of New York, 18 F. Supp. 3d 320, 340 (E.D.N.Y. 2014).

"Here, the Order may ultimately disqualify plaintiffs from employment in their positions at public schools in New York City, but 'the Due Process Clause secures the liberty to pursue a calling or occupation, and not the right to a specific job.' Parsons v. Pond, 126 F. Supp. 2d 205, 207 (D. Conn. 2000) (citations and quotations omitted). Plaintiffs' contention that they may not find alternative means of pursuing their profession as appealing or convenient for a variety of reasons is well taken. However, although defendants may render it more difficult for them to pursue their calling, plaintiffs are not absolutely being barred from doing so. For example, plaintiffs may pursue teaching or paraprofessional jobs at private schools in New York City, public and private schools outside of New York City, daycares or early childhood education centers, tutoring centers, adult or continuing education centers, virtual institutions, or within home settings. Therefore, plaintiffs are not being denied{**73 Misc 3d at 628} their fundamental right to pursue their profession.

"Further, any property right to employment that plaintiffs may claim does not rise to the level of a fundamental right protected by substantive due process. Generally, property interests related to employment are not among protected fundamental rights, [but] are 'simple, state-law contractual rights, without more.' Walker v. City of Waterbury, 361 F. App'x 163, 165 (2d Cir. 2010) (summary order) (quotations omitted). Neither is there a fundamental right to continued public employment. Martin v. Town of Brattleboro, No. [*5]07-cv-260, 2008 WL 4416283, at *2 (D. Vt. Sept. 24, 2008) (noting that 'most Circuit Courts of Appeal have declined to find that a right to continued public employment is a fundamental property interest entitled to substantive due process protection')."

This court concurs with the above analysis and as such, petitioners will be unable to establish a likelihood of ultimate success on the merits.

The court notes that petitioners are similarly unlikely to succeed on the second prong of the preliminary injunction test as they cannot establish an irreparable harm as the loss of employment is compensable by money damages and reinstatement to said employment. Petitioners' represented employees who refuse to accept vaccination and are ineligible for an exemption are still entitled to contest any negative outcome through their union procedures and additionally are able to pursue their profession outside of those schools impacted by the order.

The third prong requires a balancing of the equities. Here, the court is faced with the reasoned views and directives of public health officials seeking to best protect the health and welfare of children, many of whom are under the age of 12 and therefore unable to be vaccinated at this time, their families and all school-based employees. On the opposing side, as noted earlier, a minority seeks to reject vaccines for various reasons.

A balancing of the two viewpoints leaves this court little choice—public health concerns far outweigh the concerns of a few. Thus, here a preliminary injunction must be denied as petitioners fail on all three prongs, where failure on just one is sufficient to deny issuing of a preliminary injunction.

Respondents have also filed a cross motion seeking dismissal of this action, inter alia, arguing that petitioners have failed to{**73 Misc 3d at 629} state a cause of action for relief pursuant to CPLR 7803 (3). The applicable standard in an article 78 proceeding is "whether [the] determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion." (CPLR 7803 [3].) Administrative action is arbitrary when it is taken "without sound basis in reason" and "without regard to the facts." (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; see Matter of Ward v City of Long Beach, 20 NY3d 1042, 1043 [2013].) "[T]he court may not upset the agency's determination in the absence of a finding . . . that the determination had no rational basis." (Matter of Mid-State Mgt. Corp. v New York City Conciliation & Appeals Bd., 112 AD2d 72, 76 [1st Dept 1985], affd 66 NY2d 1032 [1985].)

Petitioners allege in paragraphs 83-87 of the petition as follows:

"83. The Order violates these employees' individual bodily integrity and right to refuse medical treatment by forcing employees to undergo unwanted medical procedures or be precluded from engaging in their chosen professions.

"84. The Order violates employees' due process rights by involuntarily preventing permanently-appointed DOE and City employees declining vaccination for any reason from engaging in their employment, resulting in the summary deprivation of their vested property rights without due process. US Const. amend. XIV, NY Const. art. 1, § 6, N.Y. Educ. Law §§ 3020, 3020-a, N.Y. Civ. Serv. Law § 75.

"85. The Order does not allow for an exception based on an individual employee's medical inability to receive a vaccination. Failing to provide a medical exemption and thereby sacrificing the health of vulnerable populations contradicts the purpose of the Order: to protect the public health.

"86. The Order does not allow for an exception based on an individual employee's sincerely held religious objection to vaccination. To the extent the City or DOE deprive [*6]employees of their employment because they choose not to get vaccinated for religious reasons, the Order unequivocally conflicts with Title VII's anti-discrimination laws.{**73 Misc 3d at 630}

"87. The Order does not allow for any exceptions to vaccination—such as weekly testing or mask-wearing—which were present in other, now-superseded, DOHMH COVID-19 vaccination orders applicable to healthcare and nursing home/congregate setting workers, and which are currently applicable to other City employees."

As discussed supra, based upon the issuance of the new order, the arguments advanced in paragraphs 86 and 87 of the petition are now moot.

[2] In support of its position that the order violates petitioners' represented employees' rights to individual bodily integrity, in addition to the entirely inapposite cases of Griswold v Connecticut (381 US 479 [1965] [contraception]); Loving v Virginia (388 US 1 [1967] [marriage]); Roe v Wade (410 US 113 [1973] [abortion]); Lawrence v Texas (539 US 558 [2003] [same-sex intimate sexual relations]); and Obergefell v Hodges (576 US 644 [2015] [same-sex marriage]) cited above, petitioners cite Cruzan v Director, Mo. Dept. of Health (497 US 261, 278 [1990]), which is similarly inapposite. Petitioners claim that Cruzan concerns whether an individual in a coma had a right to refuse food and water based on their protected liberty interests under the due process clause. Said decision in fact holds that the United States Constitution does not forbid Missouri to require that evidence of an incompetent's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence. (497 US at 269-285.) Petitioners further cite Noble v Schmitt (87 F3d 157, 161 [6th Cir 1996]) and Washington v Harper (494 US 210, 229 [1990] ["(F)orcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty"]), both of which deal with the rights of the incarcerated. Petitioners fail to mention that both of said cases add that "[w]here an inmate's mental disability is the root cause of the threat he poses to the inmate population, the State's interest in decreasing the danger to others necessarily encompasses an interest in providing him with medical treatment for his illness." (Harper, 494 US at 225-226.) While the court notes that petitioners are not prisoners, the balance to be struck is identical. Here, as in all school mandatory vaccination cases, petitioners' rights must be balanced against the potential harm experienced by the students at DOE schools, who cannot yet be vaccinated. Petitioners' paragraph 84 argument concerning their property rights fails{**73 Misc 3d at 631} to state a cause of action because as discussed supra "property interests related to employment are not among protected fundamental rights, [but] are 'simple, state-law contractual rights, without more.' " (Maniscalco, 2021 WL 4344267, *3, 2021 US Dist LEXIS 184971, *7; Walker v City of Waterbury, 361 Fed Appx 163, 165 [2d Cir 2010].) As such, petitioners' due process arguments are entirely unavailing.

Petitioners' argument in paragraph 87, that "[t]he Order does not allow for any exceptions to vaccination—such as weekly testing or mask-wearing—which were present in other, now-superseded, DOHMH COVID-19 vaccination orders applicable to healthcare and nursing home/congregate setting workers, and which are currently applicable to other City employees," also fails to state a cause of action which can be resolved in an article 78 proceeding. Petitioners argue that respondents did not even attempt to implement the vaccinate or test plan previously in place before superseding same with a vaccination mandate and as such, the order is arbitrary. Contrary to petitioners' argument, public health agencies, in particular, are entitled to a high degree of judicial deference when acting in the area of their particular expertise. (See C.F. v New York City Dept. of Health & Mental Hygiene, 191 AD3d 52 [2020].) As in the instant action, an agency's decision to rely on the conclusions of its experts, rather than the conflicting conclusions [*7]of challengers' experts, does not render its determination arbitrary, capricious, or lacking in a rational basis. (C.F., 191 AD3d at 69, citing Matter of 278, LLC v Zoning Bd. of Appeals of the Town of E. Hampton, 159 AD3d 891, 894 [2d Dept 2018].)

It is undisputed that the Department of Health and Mental Hygiene had the authority to issue the order. (See NY City Charter §§ 556 [c] [2]; 558 [c]; Administrative Code of City of NY § 17-109 [b].) Further, this court cannot and will not substitute petitioners' judgment for that of New York City's public health experts, especially where, as here, petitioners submit no medical documentation. (See Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 237-240 [1984].)

Ordered that petitioners' order to show cause seeking injunctive relief is denied; and it is further ordered that respondents' motion seeking dismissal of the instant petition is granted in its entirety.