NY Courts To Fire Unvaccinated Workers In April

Law360 (March 22, 2022, 11:06 AM EDT) -- After months of warnings, New York state court administrators have told 156 employees they will be fired in early April for failing to get vaccinated against COVID-19 unless they immediately get inoculated.

Letters obtained by Law360 show the Office of Court Administration on Monday warned employees in bold, underlined and capitalized text that "should you fail to comply with the vaccination mandate by close of business on April 4, 2022, your employment with the court system will be terminated," explaining that unvaccinated workers have been "deemed unfit for service for your failure to meet the qualifications necessary for employment."

"Should there be no change in their status of non-compliance with our vaccine mandate policy in the next 13 calendar days, they will be terminated," state courts spokesperson Lucian Chalfen told Law360 on Tuesday. "These employees have been given adequate time to either comply or submit an accepted medical or religious exemption."

"Currently, they are barred from entering any court facility, and their absence is being charged to any accruals that they may have," Chalfen added. The restriction applies to only the non-public areas of the courthouses, he clarified.

This letter to a New York court officer from the Office of Court Administration informed him that he would be fired for failing to comply with the vax mandate. (Source: Jermaine Dublin)

Union officials have balked at the OCA's efforts to oust the employees, saying they violate labor law by making an end-run around collective bargaining agreements. Unions have gone to court to challenge the mandate, but they say there is little they can do in a two-week window to prevent employees from being yanked off the state payroll.

"Our Public Employment Relations Board hearing begins April 5. I don't think the PERB judge is going to be very happy about this," said Dennis Quirk, president of the New York State Court Officers Association, faulting Chief Judge Janet DiFiore who heads OCA. "She's doing it the day before the hearing. ... She's putting a gun to everybody's heads and not letting us go through the process."

Critics of the vaccination policy decry a "double standard" in which they say judges have been allowed to ignore the mandate and work from home while nonjudicial court employees who flout the rule aren't allowed to work and have their vacation days docked as they face the prospect of termination.

Law360 previously reported on two judges who have failed to meet the mandate.

In October, two court employees said Court of Appeals Judge Jenny Rivera has provided no proof of vaccination and filed no exemption request, and has continued handling cases remotely.

And in January, courthouse sources indicated that Poughkeepsie City Court Judge Frank M. Mora, who is unvaccinated, defied the court system's policies by repeatedly returning to the courthouse maskless and presiding over criminal proceedings remotely. He was stripped of criminal cases but is still working remotely.

According to the OCA, there are still four state judges in violation of the vaccine mandate. While court administrators have no power to discipline judges under the state constitution, Chalfen said "they too are being held to account."

"Any judge not in compliance subjects themselves to a referral to the Commission on Judicial Conduct for their determination," he said. The commission can investigate, publicly reprimand or remove judges for ethics violations via often lengthy, secret proceedings.

Jermaine Dublin, a Poughkeepsie court officer who worked in the same courthouse as Judge Mora, was placed on unpaid leave in January and received one of the April termination letters on Monday.

"As long as the policy is not being applied evenly, then how can I feel that I got a fair shake?" Dublin told Law360 Tuesday. He added that he and Judge Mora are friends and shared concerns about being vaccinated, even though they now face different consequences for their choices.

While Dublin faces unemployment, Judge Mora continues to collect an approximately $190,000 salary, state records indicate. And although the judge could face a lengthy private ethics proceeding before the Commission on Judicial Conduct, he will be afforded the chance to defend his decision not to be vaccinated, or perhaps choose to resign under a stipulation.

"When you reach certain levels, you can become untouchable," Dublin said.

--Editing by Philip Shea.

Update: This article has been updated to include comments from a union official and a court officer, as well as a clarification from the courts spokesperson.

For a reprint of this article, please contact reprints@law360.com.

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