What happens when jurisdictions impose a vaccine mandate on officers
Rules. Think about how many times during a workday, a law enforcement officer must follow a rule. Every workday since the first day of the academy. Or before for those who served in the military.
Herein lies the perplexity for some NJ State PBA members who work in a municipality or county that has imposed a COVID vaccination mandate to be allowed to do the job. Rather than playing by the rules, employers are playing by the rulings. And so the question of whether you must get the shot has been left up to the courts.
An appellate ruling in the high-profile case Newark firefighters and police officers made to contest the mandate Mayor Ras Baraka ordered has reinforced the right to enact a vaccine mandate. The ruling made in September reversed injunctions issued by the Public Employment Relations Commission (PERC).
“The last word we have right now is the Newark case, which says it’s basically a managerial prerogative to require vaccinations,” confirmed Robert Fagella, the NJSPBA attorney from the firm of Zazzali Fagella Nowak Kleinbaum & Friedman. “Under that decision, the employer can require vaccination without negotiation.”
If it were that cut and dried, this story would end here. The matter, however, is still evolving, especially regarding members who have medical or religious objections to getting vaccinated. There are also collective bargaining issues and questions about progressive discipline given to officers who refuse to comply with the mandate.
And as hard as it may be to believe, some attorneys who represent PBA Locals have seen jurisdictions politicize the vaccine issue. Not that this is the reason the government’s right to have mandates in New Jersey is alive and well, but…
“Here in New Jersey, the courts are not going to be friendly toward those individuals who do not want to be vaxxed,” commented attorney Stuart Alterman, whose firm Alterman & Associates represents several PBA Locals.
Members should be confident that attorneys representing Locals will continue to look for ways to best address this issue that has evolved ever since vaccinations were approved for emergency use a year ago. Since then, even First Amendment rights did not lead to a successful avenue of legal redress.
As part of searching for other avenues, Alterman found that the Police and Fire Retirement System (PFRS) insurance policy did not cover any damages due to taking or utilizing a prescribed drug that had not yet been approved or a treatment that had not been approved. That resulted in a temporary injunction until the PFRS, and eventually the insurance carrier, amended the policy to remove that exclusion.
Alterman cited another case from the Seventh Circuit in Indiana in which a group of Indiana University students did not want to be vaccinated. They were told to leave campus and filed suit in Federal District Court to be allowed to stay. Their attorney applied to have the case heard in the U.S. Supreme Court, but Justice Amy Coney Barrett denied it.
The point of all of the above is this:
“As an attorney, I’m thinking this is not exactly going anywhere real fast,” Alterman observed. “Our arguments of, ‘We shouldn’t be vaxxed if we don’t want to’ are really failing everywhere very, very quickly.”
Of course, there is more to it than that. Members who have a legitimate medical or religious objection to getting vaccinated have a good chance to be excluded from the mandate.
Fagella shared how he recently reviewed five religious exemption requests and believed most would be approved by the town manager or whoever made the final decision. But he added that one quoting the line from Bible, “Your body is a temple,” would not make it as a religious exemption. Another one he reviewed included a document from a church leader indicating it’s a longstanding practice of the church to oppose any vaccination.
“Now is this a legitimate church?” Fagella submitted. “I personally was not inclined to get down to that level of questioning it. And I just said, ‘This is fine with me.’”
Ostensibly, no members are looking to abuse the religious exemption. In fact, attorney Frank Crivelli, whose firm Crivelli, Barbati & DeRose LLC represents several Locals, has seen a very positive response to religious objections.
“All of the individuals I have represented who have put in for religious exemptions have stated the reason behind the exemption, why it should be granted, and no further proof has been needed or necessary,” Crivelli noted.
The medical objection requires documentation from a doctor about why the vaccine can be harmful to the person requesting exemption. But members should also be prepared to have that documentation examined by an independent medical expert.
“That’s no different than any other case where there’s a dispute with medical doctors,” Fagella explained.
When reviewing and interpreting all that has transpired with rulings on vaccine mandates, Fagella specifies that the courts have determined it’s a right for employers to order vaccinations for public employees. But it’s not an obligation. It’s a management prerogative.
This is an important distinction because implementation of a vaccine mandate has not necessarily been contentious. Crivelli said he has worked with some municipalities that have offered testing and masking options for officers who don’t want to be vaccinated.
Perhaps, then, some of the troubled waters have come because the state has not offered a standardized policy on vaccine mandates. As a result, where one town might have a mandate, the town immediately due east – or any other direction – might not. Officers from one might end up in the other, which means the mandate is not a failsafe approach and further perplexes members who are mandated.
On the other hand, a policy is not one size fits all. What might work in a municipality is probably not the best approach for a corrections facility. So if it’s a management prerogative, management hopefully is wise enough to work with the Local to find the policy size that fits best.
“I think that the unions, when permitted to work with the government entity, have come up with some very, very good plans,” Crivelli reported. “They don’t unnecessarily intrude on the personal rights of the employee, but they still provide the necessary protection to the workforce, as well as the general public.”
The prerogative also means that the employer does not need to collectively bargain whether a mandate will be implemented. But management does have to negotiate the impact of the requirement.
Locals encountering a mandate have the right to bargain over whether officers get time off to be vaccinated. They can negotiate who pays for the vaccination, where it takes place, what the consequences are if somebody gets sick from it and how much time off will be allowed before coming back, among other questions.
The vaccine mandate battle likely now looms regarding discipline for officers who refuse to comply. Attorney Charles Sciarra of Sciarra & Catrambone, LLC, recently represented members of West Orange Local 25 who did not provide proof of being vaccinated.
They were suspended without pay, so Sciarra filed suit that their due process rights were being denied. He questioned whether the mandate was not just a matter of public safety.
“Some of the most anti-cop towns are just basically dropping the hammer,” Sciarra asserted. “We fought on due process issues about the fact that you shouldn’t get stuck with the mandate without at least some ability to fight on a disciplinary level. And we ran into a judge who seemed to be indifferent to due process rights.”
Discipline resulting from this matter can be bargained and should be progressive. With the way it is evolving in the courts, attention should be paid to ensure it doesn’t lead to wrongful termination issues. Crivelli also noted that departments might not be too hasty in handing out mandate-related discipline because they know the importance of a well-trained, certified law enforcement officer.
Still, it’s going to continue to be playing by the rulings. In the New Jersey State Legislature recently, some lawmakers were prohibited from entering the State House because there was a mandate that they be fully vaccinated, and they were not. Do these lawmakers have a duty and responsibility to be vaccinated because they cannot do their jobs without doing so?
“I think it’s settled right now,” Crivelli concluded about whether law enforcement officers in New Jersey have to comply if presented with a vaccine mandate. “But it seems like every time you turn your head, there’s a different case being brought forward that could have an effect on law enforcement officers.”