New York Repeals COVID Vaccine Mandate For Healthcare Workers But Legal Fight Not Over • Children’s Health Defense

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New York State officially will repeal its COVID-19 vaccine mandate for healthcare workers on Oct. 4, the attorney general’s office on Tuesday informed the New York Supreme Court.

The announcement comes after New York health officials revealed in May that they planned to repeal the mandate, in a surprise move during a hearing in a lawsuit challenging the mandate.

Children’s Health Defense (CHD) sponsored the lawsuit, filed Oct. 20, 2022, by a group of medical practitioners affected by the mandate, along with several additional plaintiffs, including two doctors, a nurse, a radiologic technologist and a medical laboratory specialist.

Defendants in the case include the New York State Department of Health (NYSDOH), New York Gov. Kathleen C. Hochul and Mary T. Bassett, the state’s health commissioner.

Sujata Gibson, the plaintiffs’ attorney, today told The Defender:

“This is a tremendous victory for the healthcare workers and for medical freedom in general, but also for the people of New York who have been deeply impacted by the massive shortage that occurred because of this mandate. Thirty-four thousand healthcare professionals had to leave the field, and we have all been impacted by their absence.

“While this victory is significant, the fight is not over. People suffered enormously because of this mandate and justice needs to be done so that they can be made whole.”

On Jan. 13, the court found for the plaintiffs and struck down the mandate, declaring it “null, void, and of no effect” and alleging the state’s health department “blatantly violated the boundaries of its authority as set forth by the legislature.”

The state appealed, and separately won a stay against the initial ruling. The stay reinstated the mandate, which affected an estimated 34,000 healthcare workers, and perpetuated the ongoing worker crisis in New York’s healthcare system.

Sujata Gibson told The Defender that by allowing the mandate to remain in place, the stay devastated the lives of thousands of workers who remained shut out of work because they were terminated or suspended.

New York’s Supreme Court Appellate Division in Rochester was scheduled to hear arguments on the mandate at a hearing in May. But just minutes before the plaintiffs were set to begin oral arguments, Jonathan Hitsous, an attorney representing the state, announced its intention to repeal the mandate.

Repealing a mandate is a lengthy process requiring a public comment period and hearings. Hitsous told the court the state’s health department would no longer enforce the mandate during that process.

The documents submitted to the court Tuesday showed that during the public comment period, the NYSDOH received only one comment about the proposed repeal, which was from the New York City Department of Health and Mental Hygiene.

That department urged NYSDOH not to repeal the mandate and instead to amend the regulation to require personnel to be “up to date” with COVID-19 vaccination or to wear a “well-fitting mask” at times when COVID-19 is determined to be prevalent.

The NYSDOH considered those options and rejected them, Gibson said.

But, it indicated it may “continue to seek sanctions against providers based on previously cited violations that allegedly occurred.”

Kim Mack Rosenberg, CHD acting general counsel, told The Defender the repeal was a “tremendous victory” for healthcare workers and the patients they care for.

“However,” she added:

“We cannot forget the workers who were damaged by the mandate. The mandate took a financial and emotional toll on professionals dedicated to patient care. Among other things, they suffered job loss and, in many instances, had to leave New York State in order to find work and support their families.

“Many of those workers may not want to or may not be able to return to New York, even with the mandates lifted. The impact of the mandate will be felt for years to come.”

Plaintiffs still seeking to uphold lower court ruling

When he announced, in May, plans to repeal the mandate, Hitsous also asked the court to overturn the lower court’s original ruling striking down the mandate as illegal and unconstitutional.

Hitsous argued the original lawsuit was rendered moot — the rights and interests of the parties involved are no longer at stake — because the state planned to repeal the mandate.

But Gibson opposed the move to vacate the original ruling, arguing it “leaves open the very real possibility that this constitutional violation could happen again and ruin many more lives.”

In fact, later the same day that Hisous announced the state’s intent to repeal the mandate, the NYSDOH sent out guidance to affected healthcare facilities clarifying that the promises to the court were not accurate, Gibson said.

The letter stated the NYSDOH would stop citing providers for failing to comply with the mandate while its termination was undergoing consideration, but that the department was still seeking sanctions for past violations.

The NYSDOH also reminded providers that they must continue to follow and enforce all applicable state and federal laws — which by implication included the mandate.

Gibson filed a motion on June 8 asking the court to lift the stay and either consider the case on its merits or end the appeal of the original decision.

She also detailed the effect on workers who continued to suffer harm because the state’s voluntary repeal is only prospective, not retroactive.

The state’s attorney did not oppose her motion to repeal the stay. In fact, on June 20, Hitsous submitted an affirmation of the motion.

However, because the affirmation was submitted after the deadline set by the court, it was not accepted by the panel, and the stay technically remained in place. Despite this, people interviewed by The Defender said hospitals did begin dropping their mandates.

Gibson told The Defender the state’s submission to the court this week shows why the case remains relevant and is not made moot by the repeal.

“The submission makes clear that this case is not moot as they reserve the right to continue to seek sanctions against people who allegedly violated the mandate before the repeal and the harm that was done still needs to be remedied.”

The court has yet to decide on the motions before it.

Mandates for workers were devastating but the lawsuit made a difference

New York’s COVID-19 mandate for healthcare workers took effect in September 2021, prompting 34,000 medical workers, or 3% of the workforce at the time, to quit or be fired instead of getting the shots.

Then-Gov. Andrew Cuomo first enacted the mandate on Aug. 16, 2021, and the NYSDOH adopted it as a permanent rule under Gov. Hochul on June 22, 2022, even though New York ended its COVID-19 state of emergency on June 24, 2021.

Margaret Florini, spokesperson for Medical Professionals for Informed Consent, told The Defender the mandate devastated thousands of healthcare workers in New York.

She said:

“We pooled money to help people in our lawsuit provide food for their children, to provide birthday presents for their children, to provide Christmas presents for their children.

“Wow. I mean, people have lost their homes that they have raised their families in, and had to sell them. Pensions have been drained, retirements have been drained. There are people in New City who are literally begging because they are so in debt and can’t pay their rent.

“And a couple people in Medical Professionals for Informed Consent have received their final eviction notices, and they are at the point where they will literally be homeless within the next few weeks.”

As New York entered a crisis of healthcare workers, she said many workers crossed state lines to work in Pennsylvania in order to survive, and as a result, Pennsylvania’s healthcare system is booming.

Confidential documents shared with The Defender showed that after Gibson filed the motion to lift the stay in June, several hospitals changed their policies and began re-hiring fired or suspended workers.

The Defender reviewed emails showing that effective July 1, Ascension healthcare system no longer made the COVID-19 vaccine a condition of employment at its New York facilities.

There was an outpouring of gratitude by reinstated workers for the work done through the lawsuit to get their jobs back.

One reinstated worker tweeted:

Florini commented on people like this woman’s husband, saying “They’re heroes. They stood by their convictions, and we need more people like them.”

But, she said, the work is not done. If the lower court’s ruling is upheld, plaintiffs will be able to seek job reinstatement, back pay and other damages in a different process.

Florini said:

“I just think about the overwhelming devastation that this mandate has caused so many thousands of people in just New York state — this cannot be forgotten. We cannot forget what our own government has done to us.

“And they need to pay, they need to pay these people back. The emotional damage, the financial damage, it’s immeasurable.

“And we just have to make sure that we do not forget this. We can’t let this happen again.”

Gibson added that she thought the mandates would have remained in place had the lawsuit not been pending.

“I think we owe a great deal to the people that brought this to CHD and to the doctors and nurses and other healthcare workers who have been fighting for these rights at great personal expense,” she said.