vaccine mandate

Judges Let NYC Schools Proceed With Vax Mandate for Educators; Goes Into Effect Oct. 4

As of Monday, Mayor Bill de Blasio said 87% of all city Department of Education employees are vaccinated, including 90% of teachers and 97% of principals

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What to Know

  • A federal court ruled earlier than previously expected, dissolving the previous temporary injunction and allowing the vaccine mandate for NYC public school teachers to move forward
  • A three-judge panel had been expected to hear the case on Wednesday, but now the city will go ahead with the mandate effective Monday, Oct. 4 — meaning all teachers and DOE staff must get the vaccine by end of Friday
  • Monday marked the start date for Gov. Kathy Hochul's state medical worker vaccine mandate; many still haven't met the requirement and hospitals and nursing homes are bracing for potential staff shortages

Hours before New York City's vaccination mandate for Department of Education employees was scheduled to begin, federal judges ruled in the city's favor and dissolved the temporary block that kept the city's order on ice.

A three-judge panel had been scheduled to hear the case Wednesday, almost a week after the court granted a temporary injunction from a long judge on Friday. Instead, the 2nd U.S. Circuit Court of Appeals in Manhattan issued its ruling Monday evening, in a move that shocked many, dissolving Friday's injunction and denying the original motion.

After an adverse ruling from a Brooklyn judge, a group of teachers had brought the case to the appeals court, which assigned the three-judge panel to hear oral arguments. But the appeals panel issued its order after written arguments were submitted by both sides.

Mayor Bill de Blasio said later in the evening that the vaccine mandate will go into effect on Monday, Oct. 4 — meaning that all school employees have until the end of day on Friday to get the necessary vaccination, if they haven't done so already.

The city's DOE cheered the judges' ruling.

"Vaccinations are our strongest tool in the fight against COVID-19 — this ruling is on the right side of the law and will protect our students and staff," said DOE spokeswoman Danielle Filson.

But the city's largest teachers union wasn't so quick to celebrate the new developments. In a statement, the United Federation of Teachers said that while the city's estimates had 97 percent of teachers being vaccinated, a recent union survey showed "only about one-third (of UFT chapter leaders) believe that as of now their schools can open without disruption, given the potential shortage of unvaccinated personnel.

"The city has a lot of work before it to ensure that enough vaccinated staff will be available by the new deadline," the statement from UFT President Michael Mulgrew read. "We will be working with out members to ensure, as far as possible, that our schools can open safely as the vaccine mandate is enforced."

Leading lawyers for teachers said they'll ask the U.S. Supreme Court to intervene. Attorney Mark Fonte, who brought the lawsuit on behalf of teachers and others, said in a statement that he and attorney Louis Gelormino were immediately petitioning SCOTUS.

"As of this moment the mandate is in place,” he said, adding that he and Gelormino were "dismayed and disappointed by this turn of events."

Fonte added: "With thousands of teachers not vaccinated the City may regret what it wished for. Our children will be left with no teachers and no security in schools."

It's the latest win for de Blasio and city officials in their plan to implement safeguards in the nation's largest school district they hope will keep young children, who are not yet eligible for a COVID-19 vaccine, safe.

But it's also another 11th-hour move that's sure to lead to some confusion among educators and parents. The previous block to the mandate had prompted the mayor to reimplement the policy weekly testing for staff who do not produce proof of vaccination.

As of Monday, de Blasio said 87 percent of all DOE personnel are at least partially vaccinated, including 90 percent of teachers and 97 percent of principals. The UFT said 97 percent of its members are at least partially vaccinated as well.

An attorney representing Department of Education employees says opponents of the mayor's school mandate just want a weekly test option scribed into the rule for those who, for whatever reason, do not want to be inoculated against COVID.

"Quite many of them are not anti-vaccination. They're anti-mandate," attorney Louis Gelormino said of city education workers who oppose de Blasio's shot requirement. "Think the true thing that united them all is that they're the only municipal workers in New York City that are being forced to get this vaccination and they're the only school teachers in New York state that are being forced to get this vaccination."

Lawyers for teachers argued Monday in papers submitted to the 2nd Circuit that teachers who are placed on unpaid leave because they have not complied with the order will be irreparably harmed if the appeals court failed to block the mandate.

The lawyers wrote that the city's order will “leave teachers and paraprofessionals without the resources to pay rent, utilities, and other essentials. The harm is imminent.”

They said the mandate would leave thousands of New York City children in the nation's largest school district without their teachers and other school workers.

“Imminent and irreparable harm exists,” the lawyers insisted.

Many health care workers have still not yet received a required first shot of the COVID-19 vaccine days before the state's deadline, leaving the prospect of potentially thousands of health care workers being forced off the job on Monday. NBC New York's Ida Siegal reports.

Even though most school workers have been vaccinated, unions representing New York City principals and teachers warned the 1 million-student school system could be short as many as 10,000 teachers, along with other staffers, if the mandate forces some away from the classroom.

Mayor de Blasio had previously resisted calls to delay implementing the mandate, insisting the city was ready. He has also said the city has an army of fully vaccinated substitutes ready to deploy should there be any concern about adequate staffing in its schools. Following Monday's last-minute ruling, it wasn't immediately clear if the city would still implement the mandate according to schedule.

“We’ve been planning all along. We have a lot of substitutes ready,” the Democrat said in a radio interview last week.

In an email to staff over the weekend, NYC Schools Chancellor Meisha Porter had advised schools to prepare for the possibility the vaccine mandate taking effect this week, guidance which would later prove wise given the judges' ruling Monday. The mayor had also said he believed the mandate would prevail, citing a recent failed effort in federal court to block Key to NYC, the city's rule requiring patrons of restaurants, gyms, theaters and other venues to provide proof of vaccination prior to entering businesses, as fuel for his argument.

The requirement to receive at least one dose of the COVID vaccine was supposed to go into effect by Sept. 27, 2021.

While teachers and staff all reported for duty Monday, there were growing concerns of potential staffing shortages in hospitals and nursing homes over Gov. Kathy Hochul's vaccine mandate.

The state's vaccine mandate for medical workers, which took effect Monday, encountered its own court challenges as well. Employees who refuse the shots face suspensions and termination, according to Hochul's order. Some hospitals and nursing homes across the state began removing workers for failing to meet a state-mandated deadline to get a COVID-19 vaccine. Hochul pleaded with holdouts to get their inocculations.

It was not clear Monday if a wave of suspensions and terminations of healthcare workers who refused be inoculated would cause dramatic staff shortages around the state. Hochul said workers had until the end of the day Monday to get at least one dose of the COVID-19 vaccine, as required.

"To those who have not yet made that decision, please do the right thing," Hochul said at a press briefing. "A lot of your employers are anxious to just give you the jab in the arm and say you’re part of the family, we need your help to continue on."

The rules apply not just to people like doctors and nurses, but to those who work in health care institutions, like food service workers, administrators and cleaners. The state’s largest health care provider, Northwell Health, said about two dozen unvaccinated employees it characterized as leaders were “exited from the system,” and that they would begin that process for the rest of the unvaccinated staff. A spokesperson declined to clarify.

Noncompliant employees at hospitals run by the State University of New York face "immediate suspension and pending termination" on Tuesday, according to a memo sent to administrators by Chancellor Jim Malatras.

"If people are not vaccinated, they’re not going to get paid for today," said Mitchell Katz, head of New York City's public hospital system. "But we’re keeping lines of communication open, and we’re hoping that if not today, then by tomorrow people will go and get vaccinated and resume their posts."

A vaccine mandate for New York City public schools teachers and other workers was meant to go into effect Monday, along with the state's vaccine mandate for health care workers, but it was temporarily blocked for the second time as legal woes over the life-saving shots continue. NBC New York's Tracie Strahan and Romney Smith report.

Like de Blasio, Hochul has said she is prepared to distribute resources as needed to accommodate any personnel limitations that emerge because of the mandate. She said Saturday she is prepared to call in medically trained National Guard members, retirees and workers outside New York to address potential staffing shortages.

As of Monday, de Blasio said city hospitals were running fine staff-wise when asked about early impacts from Hochul's mandate. Staffing is manageable at this point within NYC Health + Hospitals, the largest municipal health system in the United States, said Dr. Howard Katz, president and CEO of the group.

Of 43,000 employees at the city's 11 public hospitals, just 5,000 — less than 12 percent — are not yet vaccinated, Katz said Monday.

The mayor did say he expected the vaccine mandate to be more problematic for hospitals in other parts of the state where vaccination rates have been lower.

Ultimately, Hochul argues that patients should not have to worry that the health professionals who they trust to protect them could infect them with COVID-19. She insists that vaccine mandates "are the smart thing to do" and must be continued.

If necessary, Hochul said she will sign an executive order giving her additional power to address staff shortages. She is looking at calling in medically trained National Guard members and retirees, or vaccinated workers from outside the state, to fill any gaps. The state also will convene an “operations center” to shift resources to healthcare facilities with workforce shortages, she said.

The order would allow healthcare professionals who are licensed in other states or countries, are recent graduates or are formerly practicing health care professionals to practice in New York, Hochul said. She is also exploring ways to expedite visa requests for medical professionals.

“I am monitoring the staffing situation closely, and we have a plan to increase our healthcare workforce and help alleviate the burdens on our hospitals and other healthcare facilities,” the governor said in a weekend media statement.

Hospitals around the state have been preparing contingency plans that included cutting back on elective surgeries. Many nursing homes were limiting admissions in anticipation of a staffing shortage. The mandate comes as hospitals are already reeling from staff shortages fueled in part by workers retiring and employees seeking other jobs after 18 months of the pandemic.

“We’re roughly about 84% statewide vaccinated right now, so any initiatives that the governor could advance to increase the workforce is welcome and needed,” said Stephen Hanse, who represents nursing homes statewide as president of the New York State Health Facilities Association and the New York State Center for Assisted Living.

Health care workers can apply for a religious exemption, at least for now. A federal judge on Oct. 12 will consider a legal challenge arguing that such exemptions are constitutionally required.

Hochul, a Democrat, has resisted calls to delay the mandate, and her 11th-hour announcement could ratchet up pressure on vaccine holdouts. She said workers terminated because of refusal to be vaccinated are not eligible for unemployment insurance without a doctor-approved request for medical accommodation.

Copyright NBC New York/Associated Press
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