Newark City Worker Vaccine Mandate Survives Court Challenge

NEWARK, NJ — A New Jersey appellate court ruled Monday that Newark won’t have to negotiate with several unions – including local firefighters and police – when it rolls out its coronavirus vaccine mandate.

In August, Newark officials announced that New Jersey's largest city will be requiring all municipal workers to get a COVID-19 vaccine, or they could lose their jobs. There will be "medical and religious exemptions" to the city's mandate, which gave employees 30 days to provide proof they got inoculated. But unlike some other government mandates for workers, the Newark mandate won't include a testing option for unvaccinated employees.

Police and fire department union leaders tried to file a restraining order to stop the effort, with one union official calling the move "heavy-handed."

Dozens of police and firefighters showed up at City Hall earlier this month to voice their opposition to the mandate.

• See related article: Cops, Firefighters Protest Newark Vaccine Mandate At City Hall

The New Jersey Public Employment Relations Commission (PERC) eventually ruled that the city must negotiate parts of the mandate with unions, such as potential discipline, testing, "privacy concerns" and the timeframe for the policy's rollout.

But the appellate court felt differently, judges reported Monday.

In a decision that may help to set precedent for future vaccine mandate challenges, the panel ruled that the unions failed to show that the harm to city employees is greater than the harm to the city. Read the full court opinion here.

The appellate panel wrote:

“While we do not construe the language concerning the right to hire and determine qualifications for employment to expressly authorize a city or municipality to impose a mandatory vaccination requirement, that language supports the city's authority to impose a mandatory vaccination requirement in a public health emergency. Moreover, no provision or language in the unions' current contracts expressly prohibits the city from imposing a vaccination mandate.”

“The unions' arguments ignore the well-established law that negotiations of managerial prerogatives are not required if the negotiations significantly interfere with the public employer's ability to set policy,” the panel added.

And that’s the case with the coronavirus pandemic, they added:

“COVID-19 has created an immediate and ongoing public health emergency that requires swift action to protect not only the city's employees, but the public they are hired to serve. Tens of thousands of people are sickened each day in our country. Hundreds are dying each day. 12 Delaying, even on a temporary basis, the timelines for implementing the vaccination mandate undercuts the effectiveness of the mandate.”

The panel continued:

“The unions focus on the impact of the mandate to some of their members who have chosen not to be vaccinated. That focus, however, ignores the impact their ‘choice’ has on coworkers and their families who have been vaccinated. Just as importantly, it ignores the impact on people with whom unvaccinated city employees come into contact. City police officers and firefighters go to or into homes, businesses, and public places daily where they encounter city residents. Indeed, all public employees interact with members of the public in a variety of settings and circumstances. Many of those residents are children under the age of twelve who do not have the option of getting vaccinated at the current time. Given the scientifically undisputed risk of spreading this deadly virus, the city has the right to protect the public.”

“We do not retain jurisdiction,” the panel concluded, remanding the matter to the state PERC for further proceedings.

The president of Newark Fraternal Order of Police Lodge No. 12 told NJ Advance Media the decision was “disappointing.”

“Issues like being ordered to get tested while off-duty, or getting put out on unpaid leave time are things that are in contrast with the language in many of our contracts, so now we look ahead to see where PERC takes this decision moving forward,” James Stewart said.

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