NJ STATE PBA LEGAL CORNER
By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.
One of the major issues facing employers and employees in New Jersey, and across the country, during this pandemic is whether employers have the authority to adopt mandatory COVID vaccination policies which could result in the discipline or discharge of employees who do not comply. During the past several weeks, public and private employers have accelerated the implementation of policies requiring either a COVID vaccination or requirement of COVID testing on a regular basis.
The City of Newark, however, recently adopted a more stringent policy requiring COVID vaccinations, but without any option for testing. In response to a challenge by unions representing all city employees, the Appellate Division recently upheld the city’s right to do so. As of writing this article, we are one of several decisions across the country that have also upheld mandatory COVID vaccination policies.
In September, Newark’s mayor issued an executive order requiring mandatory COVID vaccinations without any option for employees to be tested on a regular basis. It did include a process for employees to request exemptions for medical or religious reasons. The policy also required employees to be tested on a weekly basis on their own time until they were fully vaccinated. Employees who violate the policy would be subject to progressive discipline up to and including discharge.
After the mayor issued his executive order, labor unions submitted demands to negotiate over both the mandatory vaccination policy and the impact of the policy. Some of the impact issues the unions sought to negotiate included offering a testing option, allowing employees to be tested on work time and allowing employees to have paid time off if they became ill as result of the vaccination without having to use their own accrued time. The city refused to negotiate with the unions over the decision to adopt a mandatory vaccination policy and the impact of the policy.
Eight unions representing all city employees, including the police and fire unions, filed unfair labor practice charges and requests for temporary restraints with PERC to block enforcement of the executive order. Although the PERC hearing officer concluded that the city had the managerial authority to adopt a mandatory COVID vaccination policy, he barred the city from implementing and enforcing the executive order until it negotiated with the unions on an expedited basis over the impact of the policy. In short, the city could not enforce the executive order until it negotiated with the unions.
The city did not negotiate but, instead, filed an emergent motion with the Appellate Division requesting that the restraints be dissolved so that it could enforce its executive order. The police and fire unions, as well as the civilian unions, also filed emergent motions requesting that the court reverse that portion of PERC’s decision stating that the city had the authority to adopt a mandatory COVID vaccination policy.
On Sept. 27, 2021, the Appellate Division issued a unanimous opinion concluding that the city had the managerial right to adopt a mandatory COVID vaccination policy, that it did not have to include a testing option and that it did not have wait to enforce its policy until it negotiated with the unions. The court stated that “[t]he restraints imposed on the city under these circumstances impermissibly interferes with the city’s managerial prerogative to protect the health and safety of all of its employees and the city residents with whom the employees come into contact.”
The court therefore dissolved the restraints and allowed the city to implement and enforce the executive order. The court also gave grudging acknowledgment of the unions’ demand to negotiate the impact of the policy when it stated that “[i]f necessary, the city and unions can negotiate who will pay the cost of the testing. . .” without even mentioning that there were other issues to be addressed.
After the Appellate Division gave its decision, the police and fire unions filed requests with the NJ Supreme Court to file emergent appeals. On Oc. 1, the Supreme Court denied the unions’ request. There is no right to appeal this decision because it is not a final decision. The court’s decision is considered an interlocutory, or interim, decision because it reviewed an interlocutory decision from a PERC designee. As of this writing, the unions were considering their options.
The Appellate Division’s decision is a published decision which means that it is binding precedent throughout the state. It does not mean, however, that public employers must adopt similar policies – only that they have the authority to do so. However, it is unlikely that PERC will issue temporary retrains or interim relief if there are any future unfair practice charges filed over the adoption of mandatory COVID vaccination policies without testing options.
Locals should immediately consult with their attorneys or the NJ State PBA to discuss their options if their employers adopt mandatory COVID vaccination policies. We will continue to keep the State PBA and members updated with any developments on these issues.