[db48x]

Did you read the ruling? It’s not actually very long (terrible pdf though):

“Finally, states of emergency are meant to be _temporary_. The question presented is whether the Health Commissioner has the authority to enact a permanent condition of employment during a state of emergency. This Court finds that the Commissioner does not have that authority and has acted beyond the scope of his authority under the Public Health Law and in violation of separation of powers. The Petitioners herein should not have been terminated for their failure to comply with the Commissioner’s Order during a _temporary_ state of emergency.”

and then later in the conclusion:

“It is clear that the Health Commissioner has the authority to issue public health mandates. No one is refuting that authority. However, the Health Commissioner cannot create a new condition of employment for City employees. The Health Commissioner cannot prohibit an employee from reporting to work. The Health Commissioner cannot terminate employees. The Mayor cannot except certain employees from these orders.”

https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet...

[Aunche]

>Did you read the ruling?

That's a lot of ask of an internet commenter.

In all seriousness, I did see that part while skimming through it, but I don't find it very convincing in regards to public employees. The order came from the Mayor, not the health commissioner. Requiring city employees be vaccinated is an administrative decision. It's within the best interests of the city that city employees not get sick, that the city's health insurance premiums don't go up, etc.

[db48x]

> It's within the best interests of the city that…

Yes, but that’s not the sole requirement. In addition to serving a legitimate government purpose, a government order must also avoid being arbitrary or capricious. Every order has to meet both requirements, and this one only meets one of them. From the ruling:

“This Court finds that based on the analysis above, the Commissioner’s Order of October 20, 2021, violated the Petitioners’ equal protection rights as the mandate is arbitrary and capricious. The City employees were treated entirely differently from private sector employees, and both City employees and private sector employees were treated entirely differently from athletes, artists, and performers. All unvaccinated people, living or working in the City of New York are similarly situated. Granting exemptions for certain classes and selectively lifting of vaccination orders, while maintaining others, is simply the definition of disparate treatment. Furthermore, selected enforcement of these orders is also disparate treatment.”

[Aunche]

>a government order must also avoid being arbitrary or capricious

There were two separate orders. The first was for public employees, and the second was for private employees. I agree that the second was capricious, but the first was consistent. The city is allowed to fire city employees. Maybe something about it is unconstitutional, but the ruling completely handwaves this, as well as the justification for backpay.

[db48x]

> The city is allowed to fire city employees.

The city union disagrees rather strongly with that :) In particular, the city’s contract with these workers does not require them to be vaccinated. If your boss sprung a new rule on you and then fired you for not following it, you would be pretty upset too. Especially if it required you to take actions that you thought were potentially risky to your own personal health and safety. I’ll let you read the ruling yourself though, since it was more nuanced than that and I am tired of transcribing from a scan of a printout of a digital document.

Having multiple separate orders that result in an unconstitutional outcome is not really different from having a single unconstitutional order. I don’t know why you keep bringing that up; it’s not very interesting.

Also, awarding back pay is super common in wrongful–termination suits. Any time the harm resulting from a tort is monetary, it is quite ordinary to redress that harm through monetary means. In fact, in most cases it’s one of the easiest forms of harm to redress. The court cannot undo the harm to someone’s reputation nearly as easily, for example.

[Aunche]

>The city union disagrees rather strongly with that

Do they? From what I understand these employees aren't being represented by the union. Also, the ruling acknowledges that they did bargain with the union and are therefore not finding a breach of contract.

>Having multiple separate orders that result in an unconstitutional outcome is not really different from having a single unconstitutional order. I don’t know why you keep bringing that up; it’s not very interesting.

My point is that it's not unconstitutional for the city to fire a city employee.

[prottog]

Employment (and unemployment) by the city, which is a governmental entity, is held to a higher standard of scrutiny than private employment. It is unconstitutional for the city to fire a city employee based on arbitrary and capricious reasons, just as it would be unconstitutional for the city to impose any other sort of administrative restriction on its citizens on an arbitrary and capricious basis. Would you find it legal for the city to only issue marriage licenses to those who provide proof of vaccination?

[lesuorac]

Yeah but the ruling is bogus.

The health commissioner's order didn't say fire the employees [1]. It said that you can't have unvaccinated people on the premise which is clearly within their powers to "control of communicable and chronic diseases ... " [2]. The commissioner never said you needed to fire anybody. It we start taking this to the extreme, I think we can agree if somebody has Ebola its ok for the commissioner to say that person should not show up to work. Such a claim is in direct contradiction with the Judge's statements though: "The Health Commissioner cannot prohibit an employee from reporting to work.".

[1]: https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19...

[2]: https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet...

[db48x]

The Health Commissioner can _quarantine_ someone, for a specified period of time, yes. But that’s not what happened. Instead the Commissioner apparently decided that these people, who were not sick, couldn’t be allowed to work and earn their living. But they could still go to grocery stores and baseball games, because those places aren’t important.

Besides, you cannot go by the overall mission of some government agency to decide what they are allowed or not allowed to do. The legislature has delegated specific authority to each agency to take specific actions. An agency, no matter how well–meaning they are, is not allowed to take any action not on their list.

[lesuorac]

> Instead the Commissioner apparently decided that these people, who were not sick, couldn’t be allowed to work and earn their living

Demonstrably false. The commissioner's order (which I linked above) never required them to be fired. The order solely required they be kept off the premise which is not the same as fired. Sure somebody could fire them and then claim the health order told them to but that wouldn't make it truthful; the health code is very clear on violations being a fines / misdemeanors.

> But they could still go to grocery stores and baseball games, because those places aren’t important.

Sure. Perhaps the agency has the power to stop people from doing that. It's not explicitly listed though.

> An agency, no matter how well–meaning they are, is not allowed to take any action not on their list.

The legislature has delegated a vague do everything to the agency. So, everything is on their list ...

"Except as otherwise provided by law, the department shall have jurisdiction to regulate all matters affecting health in the city of New York and to perform all those functions and operations performed by the city that relate to the health of the people of the city, including but not limited to the mental health, intellectual and developmental disability, alcoholism and substance abuse-related needs of the people of the city. The jurisdiction of the department shall include but not be limited to the following:"

However, the Health Department does have explicit control over "(5) ... operation of facilities by other agencies of the city;". Which is exactly what they were doing. They were telling other agencies that they can't operate their facilities with unvaccinated individuals. They also tailored the order to be as narrow as it needed to be. The unvaccinated individuals are still allowed to work, just not on premise which is how a disease would get transmitted at those facilities.

[1]: https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19...

[db48x]

> The legislature has delegated a vague do everything to the agency.

I should have been clearer here. I made a general statement about determining what an agency may or may not do based on a mission statement. This is always a mistake that you want to avoid.

But it’s not really relevant to this case!

The judge didn’t find that the agency overstepped its authority. Instead, the judge found that the agency had created an order that was arbitrary and capricious, because it treated certain groups of people differently, even though they were in the same situation.

[lesuorac]

> because it treated certain groups of people differently, even though they were in the same situation.

The judge can find whatever they want but to pretend that a sportsball player is the same as a city employee is obviously bogus.

EO 62 [1] very clearly layed out the difference in their situation as concert performers and sportsball players will increase the economic activity of NYC. A city employee just doesn't have the same economic impact as the exempted classes.

Look, the judge is just again vaccination requirements and will find whatever reason they want to justify their position against them. This is pretty much layed out when the judge goes on how the city could've kept its testing strategy despite the fact that the judge doesn't at all justify what effect a testing strategy would have or what effect a vaccination strategy would have or how the two would achieve similar goals or what those goals were (i.e. the judge has no problem making an arbitrary and conspicuous claim about how the state should've ran itself).

[1]: https://www1.nyc.gov/office-of-the-mayor/news/062-003/emerge...

[db48x]

A random unvaccinated public employee _is_ in the same situation as a random unvaccinated private employee. Either they should both be allowed to go to their place of work and work, or neither of them should. No rational basis can exist for a rule that says that it is unsafe for an accountant working for the government to visit their accounting office, but that it is safe for an accountant working in the private sector to visit their office. The virus doesn’t know if you are a private employee or not; either visiting the office is safe or it is unsafe. It cannot be both.