On October 20, 2021, the New York City Commissioner of Health ordered all New York City employees to be vaccinated against COVID-19. Pursuant to the commissioner’s order, all non-exempt employees were required to provide proof of vaccination by October 29. John J. Hodgens, the Chief of Operations of the New York Fire Department, issued a memorandum to all NYFD employees on October 21. The memorandum informed employees that they could submit requests for religious or medical exemptions prior to October 27. Employees who failed to submit proof of vaccination or request an accommodation by the applicable deadline would be placed on leave without pay status on November 1. If an employee’s accommodation request was denied, the employee could appeal to a city-wide panel, which was to complete its review by November 25, 2021. Employees would not be placed on leave without pay status during the pendency of an appeal.
The City sought to bargain with the firefighters’ unions regarding the impact of the vaccine mandate. One of the unions, District Council 37, which represents emergency medical services personnel entered into an agreement with the City which provided that members could not be placed on leave without pay status before December 1, 2021. The other two unions, the Uniformed Fire Officers Association and the Uniformed Firefighters Association (UFA), did not come to an agreement with the City. The UFA challenged the vaccine mandate in New York state court and before the New York Public Employment Relations Board. The plaintiffs all failed to submit proof of vaccination or to request an accommodation by the applicable deadline and were placed on leave without pay status.
The plaintiffs alleged that their placement on leave without pay status violated their due process rights under the 14th Amendment, because doing so was in violation of disciplinary procedures outlined in New York law. New York City Administrative Code § 15-113 provided that firefighters “shall be removable only after written charges shall have been preferred against them, and after the charges shall have been publicly examined into, upon such reasonable notice of not less than 48 hours to the person charged.” Under New York law “procedures such as these need not be followed when a public employee is terminated for ‘failure to satisfy a qualification of employment unrelated to job performance, misconduct, or competency,’” so the district court held that the plaintiffs were not entitled to the protections of § 15-113 before placement on leave without pay status or termination pursuant to the City’s COVID-19 mandate.
The Second Circuit Court of Appeals affirmed the judgment of the district court, holding that even if the defendants had violated § 15-113, the plaintiffs had not necessarily suffered a due process violation under the 14th Amendment. The Court was sympathetic to the plaintiffs’ claim that “vaccination was not a valid ‘qualification of employment’ because the NYFD did not bargain with the unions before imposing the vaccine mandate.” The plaintiffs had alleged violations of state and municipal law only to support their federal due process claim, rather than simply raise stand-alone state law claims related to § 15-113; because “a violation of state law does not per se result in a violation of the Due Process Clause.” The Court had to analyze whether “the process afforded to the plaintiffs satisfied the minimum standards” of the federal Due Process Clause.
The Court explained that “in the case of a public employee who may be terminated only for cause, ‘procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided afterwards.’ With respect to plaintiffs who sought a religious or medical exemption, the City provided an adequate opportunity to be heard by allowing NYFD employees to make an exemption request and pursue an appeal to a city-wide panel if the request was denied.” The same went for those “who did not have either a religious or medical reason for not taking the vaccine,” as they, like the first group, “were also afforded constitutionally sufficient process.” That group of employees “had the opportunity to raise this issue in an Article 78 proceeding, and some NYFD employees have in fact done so successfully.”
Garland v. New York City Fire Dep’t, No. 23-663, 2024 WL 445001 (2d Cir., 2024).