Governor Hochul is requiring all health care workers be vaccinated and many are refusing; Mayor de Blasio is requiring that all New York City teachers (and other school-based employees) show proof of vaccination by Monday, September 27th. If they fail to present evidence of vaccination they will be placed on a leave without pay. The decision has been temporarily suspended pending the US Court of Appeals hearing arguments on Wednesday, September 29th.
Will the courts sustain the decision of the mayor? Can schools operate and operate safely without thousands of employees?
The mayor is “confident” schools can run with existing staff while the UFT and CSA presidents see a school system in disarray.
UFT President Mulgrew said the mayor has said “he’s hopeful and comfortable” that redeploying some staff as well as calling in substitutes will be enough to create a safe and effective learning environment for students.
“I don’t feel ‘hopeful and comfortable’ is enough,” Mulgrew said. “Hopeful and comfortable is not a plan” to keep students sufficiently distanced, supervised and safe.
CSA President Cannizzaro also disputed the mayor’s contention that there are thousands of substitutes ready to step in to fill the gap. “Subs will be very hard to come by because everyone is looking for substitutes right now,” he said.
Both the UFT and CSA have encouraged their members to get vaccinated. Cannizzaro said 95% of school administrators had been vaccinated, while Mulgrew estimated more than 90% of UFT members in schools had been. The percentages of other school workers who are vaccinated may not be nearly as high, they said. Mulgrew noted that the president of Teamsters Local 237, the union representing school safety agents, told him that only 50% of his members had been vaccinated.
On Friday the federal court provided a respite,
A federal appeals court has issued a temporary injunction against a Covid-19 vaccine mandate for New York City educators set to go into effect early next week, temporarily blocking enforcement while the case is sent to a three-judge circuit court panel for review.
Will the courts support the mayor’s ability to place school employees on unpaid leaves if they refuse vaccinations?
Almost a year ago the Supreme Court ignored a century of case law and overturned Governor Cuomo’s restrictions on the number of attendees at religious services citing the First Amendment, the Court wrote,
Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.
Justice Sotomayor dissented,
Epidemiologists and physicians generally agree that religious services are among the riskiest activities. Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.
The Court, in an extraordinarily speedy hearing and decision framed the limitations on attendance at religious services as a violation of the First Amendment.
As COVID and Delta ravaged the nation the courts appear to have changed direction. Indiana University announced all students must be vaccinated and the case was fast tracked to the US Court of Appeals, the court rejected the appeal in no uncertain terms. (Read decision here)
I wrote in detail about the question of the power of the court, and, the impact of public opinion on the courts – take few minutes and read here.
While I have not seen the appellate briefs in the current case one of the constitutional issues: Does the mandatory vaccination regulation violate the Fourteenth Amendment?
If the courts support the mayor and refuse to stay the vaccination order can schools function without, according to Mulgrew, 10% of teachers and tens of thousands of non-teaching school personnel?
School leaders have been provided with names of non-vaccinated personnel in their schools and are scrambling to set up plans. The union contract does provide for teachers to be assigned classes in lieu of preparation periods and compensated; although not on a permanent basis. Teachers can be voluntarily assigned to teach and additional class in lieu of preparation at a contractual rate.
The teacher contract (See here, page 48) does provide substantial additional compensation for teaching an additional class for a semester.
The number of unvaccinated teachers per school range from very few to many; entire school schedules may have to be reconfigured, schools may have no staff to cover classes. The mayor’s comment about substitute teachers being available is illusory.
If the court sustains the mayor and does not grant a stay for further appeals or a period for planning for implementation the issues will be myriad. If School Safety Officers, who monitor building entrances are placed on unpaid leaves, who monitors building entrance? The Department is requiring only vaccinated can enter a school building, who monitors? Will unvaccinated unmonitored visitors put students at risk?
How many elementary school classrooms will require new teachers or a different substitute each day?
Will running a school system without thousands of teachers violate state education law? Union contract provisions? Will students with disabilities receive full mandated services?
Of course the actual placing of teachers on unpaid leaves may “encourage” teachers and other school personnel to get the stick in the arm.
If thousands of school personnel are placed on unpaid leaves what happens to the salary not paid?
I believe the courts will sustain the mayor and not provide a stay, effectively knocking the ball into the mayor’s court. In other words, you made a decision, you deal with the consequences.
Governor Hochul is considering using the National Guard to replace state heath care workers who refuse vaccinations: who is Mayor de Blasio considering?
One of my recent blogs was entitled, New York City Schools Adrift in a Raging Storm, an understatement.
BTW, isn’t the nation on the verge of defaulting?
UPDATED (9/27/21. 9 pm)
The NY Times reports: “New York City’s vaccine mandate for nearly all adults working in its public schools can proceed as scheduled, a federal appeals panel ruled on Monday, reversing a decision made over the weekend that paused enforcement of the mandate until later this week at the earliest.
Mayor Bill de Blasio had originally ordered well over 150,000 educators and staff in the nation’s largest school system to receive at least one dose of a Covid-19 vaccine by tonight at midnight.
But on Monday evening, he said he would extend the deadline until the end of the day Friday, meaning that the mandate would take effect next Monday morning, Oct. 4″
Let’s finish on a high note: Marvin Gaye singing the National Anthem