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New York Judge Rules Fired Unvaccinated City Employees May Return to Work, Entitled to Back Pay

Neil Campbell
Neil lives in Canada and writes about society and politics.
Published: October 26, 2022
Members of the New York City Fire Department join in a round of applause outside NYU Langone Health to show their gratitude to medical staff and essential workers working on the front lines of the coronavirus pandemic on May 5, 2020 in New York City. (Image: Noam Galai/Getty Images)

A new ruling by a New York State Supreme Court Judge has sent 16 Department of Sanitation (SDNY) workers who were terminated for refusing to comply with the city’s Coronavirus Disease 2019 (COVID-19) vaccination mandate back to work with their lost wages returned.

“The vaccination mandate for City employees was not just about safety and public health; it was about compliance,” Judge Ralph Porzio ruled in his Oct. 24 Decision & Order.

Porzio continued, “If it was about safety and public health, unvaccinated workers would have been placed on leave the moment the order was issued. If it was about safety and public health, the Health Commissioner would have issued city-wide mandates for vaccination for all residents.”

The pleadings indicate the 16 SDNY workers were terminated this February after failing to comply with an October of 2021 decree by Health Commissioner David Chokshi requiring all workers show proof of injection only nine days later.

That edict was extended to all private employees in December of 2021.

Central to the Petitioners’ argument that the mandate was an overreach of governmental power and a violation of New York State Constitution was Executive Order 62 issued by new Mayor Eric Adams in March of this year that granted exemptions to “athletes, performers, and other artists” from the private employee mandate.

Judge Porzio stated in his 13-page finding that “The Mayor, in issuing Executive Order No. 62, made a different decision for similarly situated people based on identical facts. There is nothing in the record to support the rationality of keeping a vaccination mandate for public employees, while vacating the mandate for private sector employees or creating a carveout for certain professions…”

“This is clearly an arbitrary and capricious action because we are dealing with identical unvaccinated people being treated differently by the same administrative agency,” Porzio ruled.

Ultimately, Judge Porzio ordered the 16 SDNY workers be “reinstated to their full employment status” as of 6:00 a.m. Oct. 25 and are additionally “entitled to back pay in salary from the date of termination.”

The timing of the ruling is sensitive for the Adams mayorship. As recently as Oct. 19, investigative journalist team Project Veritas recorded Chris Baugh, a member of the NYC Advance Team under the Mayor, mocking public workers who lost their livelihoods under the City’s mandates in an undercover video sting.

“The cops are mad at us though because we rolled back the private sector mandate but we’re not rolling back the public sector mandate,” Baugh stated in comments at what appears to be a restaurant to what appears to be a woman he may have believed he was on a date with.

When asked by his “date” why the City rolled back the private mandate, Baugh responded, “Who gives a [expletive]? COVID is over is the short answer. Why are we still doing it for the public sector? I don’t know. We’ll probably stop that in a few months.”

Baugh’s further comments showcased a troubling attitude and may have reflected the internal culture at New York City Hall, “1,400 people voluntarily quit their jobs rather than get vaccinated. They don’t deserve their jobs back.”

“They chose not to do a very, very harmless thing that protects the rest of society. [Expletive] them.” 

“I don’t give a [expletive],” Baugh ranted. “‘This is unfair,’ [expletive] deal with it.”

According to an Oct. 20 article by the New York Post, Baugh was quickly fired following the revelations.

Adams’s Press Secretary Fabien Levy said in a statement he was terminated for “disparaging first responders,” characterizing Baugh as a “a low-level staffer who had no private or special access to the mayor” and was not hired by the Adams administration.

Judicial rulings against employee and government-level mandatory vaccination policies that result in termination have been piling up.

In August, a Florida judge granted a number of U.S. Marines who objected to taking the injection on religious grounds, but were unilaterally denied an exemption by the Pentagon, a stay against the government’s edict.

U.S. District Court Judge Judge Steven Merryday stated in his 43-page ruling: 

“The pertinent history in this action reports that not for one Marine in continuing service (of course, a token one or five or ten Marines among the 3,733 applicants would not change the case) — not for one bookkeeper or for one inventory manager; not for one data analyst; not for one ‘jarhead’ who served abroad ‘in harm’s way’ throughout 2020 and 2021 during the height of the COVID-19 epidemic but without vaccination; not for a single Marine, no matter how young, strong, or gloriously healthy and not even if the Marine already contracted COVID-19 and recovered without material consequence — in not one case has the Marine Corps agreed to allow any accommodation, including any already-proven-successful health and safety protocol, to reasonably accommodate both the health and readiness of the Marine Corps and the sincere religious belief of a fellow Marine.”

“What to make of that?” the Judge asked.

In July, NorthShore University HealthSystem in Illinois was forced to settle a class action lawsuit with roughly 500 former and current workers who were either terminated for not accepting injection or accepted injection to keep their jobs for $10.3 million.