New York public health vaccine mandate comes under fire. . Again | Bond Schoeneck & King PLLC

In August 2021, the New York State Department of Health (NYSDOH) introduced an emergency regulation — 10 NYCRR §2.61 (the Regulation) — requiring insured healthcare facilities to ensure their “staff” are “fully” vaccinated against COVID-19 is. The NYSDOH Commissioner permanently adopted the regulation in June 2022. The order, commonly referred to as the COVID-19 Vaccine Order for Healthcare Workers, has been the subject of multiple legal challenges in both state and federal courts.

On January 13, 2023, Onondaga County Superior Court Judge Hon. Gerard J. Neri reversed the ordinance on the grounds that the Commissioner of Health, Gov. Hochul, and the NYSDOH (collectively, the Defendants) in issuing the ordinance on the acted beyond their powers.[1] Judge Neri agreed with Medical Professionals for Informed Consent, an informed consent advocacy group, and two nominated physicians (collectively petitioner-plaintiffs) that the order was valid ultra viruses and therefore not enforceable.

The petitioner plaintiffs challenged the vaccination mandate, demanding a statement that the ordinance was enacted in violation of the New York State Constitution and that the legislature did not authorize the NYSDOH to enact it. The petitioner plaintiffs have also brought an Article 78 proceeding, challenging the ordinance on the grounds that the Commissioner and NYSDOH acted “beyond their jurisdiction” and that the ordinance was “anticipated by New York State human rights law that requires will take reasonable religious precautions unless the employer determines that the individual cannot be safely accommodated without posing a direct threat.”[2]

In granting the petitioners’ motion for a declaratory judgment, Judge Neri ruled that the Health Commissioner was barred from ordering vaccinations such as the COVID-19 vaccine without express legislative authority. Although lawmakers have approved certain vaccination programs, e.g. B. against measles, mumps and rubella for children, the Public Health Act is silent on COVID-19 or coronaviruses in general. Because mandatory immunization programs can only be conducted under certain provisions of the Public Health Act, and because the Public Health Act does not address COVID-19 vaccination, Judge Neri ruled that the mandatory immunization requirements created by the order were specified as ” outside the powers of the respondents.”[3]

Regarding the Article 78 procedure, Judge Neri found that “respondents do not fare better under the ‘arbitrary and capricious’ standard of Article 78”.[4] In support of the petition, petitioner plaintiffs argued that given NYSDOH’s acknowledgment that the mandate “does not achieve its stated objective – ieprevent the spread of COVID-19.”[5] Justice Neri accepted this argument, noting that the ordinance’s stated purpose of preventing transmission of COVID-19 is inconsistent with respondents’ public acknowledgment that “COVID-19 gunshots do not prevent transmission.”[6]

Judge Neri also found the ordinance arbitrary and unpredictable because the term “fully vaccinated” is defined as “as determined by the Department in accordance with applicable federal guidelines and recommendations.”[7] Because this definition is subject to change at the whim of the NYSDOH, Judge Neri ruled that it is “not a definition at all.”[8] In particular, Judge Neri did not address that portion of the petitioner plaintiffs’ Article 78 trial in which the ordinance was challenged because it was anticipated by New York State human rights law, leaving open the merits of that argument.

Per Judge Neri’s ruling, the ordinance is now void and the commissioner and NYSDOH are “prohibited from implementing or enforcing the requirement” that insured health workers remain fully vaccinated against COVID-19.[9] The long-term and practical implications of this decision, including NYSDOH’s response, remain to be seen. According to media reports, the NYSDOH is currently reviewing its options, which could include an appeal. If the defendants appeal, Judge Neri’s decision to set aside the ordinance will be stayed pending the appeal.


[1] Medical Professionals for Informed Consent et al. v. Mary T. Bassett, et al., Index No. 008575/2022, Decision and Order Motion No. 1 and Motion No. 2, NYSCEF Doc. No. 87, on p. 12 (Onondaga Cty. Supreme Ct. January 13, 2023).
[2] Medical Professionals for Informed Consent et al. v. Mary T. Bassett, et al., Index No. 008575/2022, Petition, NYSCEF Doc. No. 1, § 125 (Onondaga Cty. Supreme Ct. Oct. 20, 2022).
[3] Healthcare professionals for informed consent, above Note 1, on p. 10.
[4] ID. on p. 11.
[5] ID. on p. 5.
[6] ID. on p. 11.
[7] ID. (Citation 10 NYCRR §2.61).
[8] ID.
[9] ID.

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