Will New York’s new vaccine and mask mandates get challenged in court?
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A flurry of COVID-19 vaccine and mask mandates in New York recently has ignited a heated legal debate, and at least one lawsuit, challenging the government’s authority to impose rules to protect public health.
The latest move involved a state Department of Health council on Friday issuing an emergency regulation granting Health Commissioner Dr. Howard Zucker broad powers to require people ages 2 and above to wear masks in select settings.
Zucker promptly issued an indoor mask mandate, regardless of vaccination status, for public and private schools, as well as nursing homes, health-care settings and public transit, state records show.
Masks are also now required indoors under many circumstances at adult care homes, correctional facilities, detention centers and homeless shelters, according to the new order issued Friday.
Amid the highly contagious COVID-19 delta variant surge, Zucker cited a tenfold increase in cases in New York since July as the primary reason for resuming select mask mandates, which were previously dropped when the pandemic-related state of emergency in New York was declared over in late June, state records show.
“Multiple real-world studies” have also shown masks can reduce the virus’s spread during outbreaks, Zucker added, citing U.S. Centers for Disease Control and Prevention reports on the roughly 70% reductions in cases when mask wearing was deployed in a U.S. Navy ship and various settings in Thailand and China.
Zucker’s mask orders came after the council voted unanimously Thursday to implement a COVID vaccine mandate for health care workers statewide, including the removal of a planned religious exemption as an alternative to vaccination.
The council consists of about two dozen health care leaders from private businesses and state government.
Gov. Kathy Hochul first referred to the plans during her initial address last week after replacing former Gov. Andrew Cuomo, who resigned under the weight of sexual harassment allegations.
“None of us want to see a rerun of last year’s horrors with COVID-19. Therefore, we will take proactive steps to prevent that from happening,” Hochul said last Tuesday.
More:Gov. Kathy Hochul to require masks in schools, COVID vaccine or test for teachers
Will New York get sued over vaccine, mask mandates
Meanwhile, dozens of workers from the private and public sector have voiced interest recently in pursuing legal challenges to vaccine mandates in New York state, according to Michael Sussman, an Orange County civil rights attorney.
About 120 workers from health care, corrections and education spoke with Sussman during a digital legal consultation via Zoom on Aug. 22, he said. All of them were considering legal actions related to current or forthcoming vaccine mandates issued by employers and state government.
Mandate: NY approves COVID vaccine mandate for health care workers, removes religious exemption
Further, a high-profile Staten Island court hearing is set for Friday in a lawsuit filed by restaurant owners and other local businesses seeking to block New York City’s requirement that people must be vaccinated to enter restaurants, gyms and entertainment venues in New York City
Sussman said he also consulted with Children’s Health Defense about the COVID vaccine mandates. The group has historically sponsored numerous lawsuits seeking to eliminate vaccine requirements, including one challenging a COVID vaccine mandate for students at Rutgers University in New Jersey.
Sussman noted he doesn’t have “exactly the same position” as the anti-vaccine group, calling himself “a constitutional lawyer” who chose to get himself and family vaccinated against COVID-19.
“I don’t consider myself ideologically anti-vaccine,” Sussman said, “but I’m concerned about the long-term constitutional implications and the propriety of mandates.”
More: NY mandates COVID vaccine for health care workers, nursing home staff. What to know
What expert says about NY vaccine, mask mandates
One of the key issues involved in potentially pursuing lawsuits is whether employers and state agencies allowed a test-out option where people declining vaccination would face regular COVID-19 testing.
“That is a more palatable alternative, though unfortunately many people who are unwilling to vaccinate also raise questions about the masking and testing requirements,” Sussman said.
More: Gov. Kathy Hochul to require masks in schools, COVID vaccine or test for teachers
Meanwhile, a state Health Department board last week voted to require all health care workers affiliated with hospitals, nursing homes and other long-term care settings to be vaccinated or lose their jobs. It included a limited medical exemption but removed the planned religious exemption as an alternative to vaccination.
In contrast, Hochul announced she plans to require all K-12 school personnel to be vaccinated or face weekly COVID testing. It is the same rule being imposed for state employees unaffiliated with health care.
The school vaccine mandates were expected to include limited exemptions for religious and medical reasons.
Kathleen Hoke, a professor at University of Maryland Carey School of Law, said public health agencies, in general, have broad authority to require employers and schools to mandate vaccinations of workers.
But some of the potential legal battles, she said, may involve how employers provide accommodations, such as test-out options or remote work alternatives.
“It is an accommodation that doesn’t harm the employee,” she said, referring to state and federal laws related to the issue.
“They can get their work done and not suffer a demotion or any sort of negative effect,” she added.
More:New York repeals religious exemption for school vaccinations
Vaccine mandates differ for public and private employers
There are also key legal differences in vaccine mandates between public and private employers.
Private business, in general, have broad legal authority to deny employment for various reasons, though unionized workplaces must negotiate many details, including vaccination mandates, according to state law in New York.
Public employers, however, could face a range of constitutional challenges related to vaccine mandates, as public workplaces fall under a variety of state and federal laws related to individual rights that don’t apply in the private sector.
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Hoke also described vaccination and mask mandates as “different categories” held to different legal standards.
“It is about our bodily integrity and the invasion of our bodily integrity,” she said. “So, it is more heightened if a public entity is mandating vaccination than the wearing of a mask that is not invasive.”
Hoke noted vaccine mandates without test-out options are more likely to face legal challenges and endanger health care providers strained by the pandemic.
“Pragmatically, there is a concern that we don’t have enough health care workers,” she said.
Another potential legal battleground could involve the State University of New York System, or SUNY, which is requiring student vaccinations for in-person learning on its 64 campuses.
The SUNY vaccine mandate was pending full Food and Drug Administration approval of a COVID-19 vaccine, which was granted Aug. 23 for the Pfizer-BioNtech shot. That approval triggered an up to 35-day grace period to allow students to provide proof of vaccination or submit a request for a medical or religious exemption for campus review.
Meanwhile, Sussman said the politically divisive climate surrounding COVID vaccines is complicating attempts to simultaneously protect public health and individual rights.
“We have to stop name calling number one, and we have to have a very vigorous and intense public dialogue,” he said, “and given the way our society is functioning right now, that is very difficult — and that’s tragic.”
Before the pandemic, the most recent high-profile court cases related to vaccines in New York unfolded in 2019, as a state law ended religious exemptions for school immunizations and measles outbreaks struck Rockland County and New York City.
Sussman represented parents who successfully challenged Rockland County’s emergency deceleration that sought to bar children who are unvaccinated against measles from schools, places of worship and other public areas.
He also represented parents in a high-profile lawsuit that attempted to reinstate the religious exemptions to vaccination for students, with state and federal judges upholding the state law.
More:NY colleges mandated COVID vaccines. Will it keep delta variant off campus? What to know
USA TODAY Network New York State Team Editor Jon Campbell contributed to this report.
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David Robinson is the state health care reporter for the USA TODAY Network New York. He can be reached at[email protected] and followed on Twitter:@DrobinsonLoHud
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