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Cops versus City: Lawsuit revives vax mandate issues, including individual and religious exemptions

Many seeking religious exemptions have cited fetal tissue research and declining COVID numbers as a reason to keep their jobs, but spiritual leaders and health experts argue otherwise.

August 29, 2022 Reuven Blau, THE CITY
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Logo for THE CITYThis article was originally published on by THE CITY

Nine veteran police officers whom the city has tried to fire after the NYPD rejected their religious exemptions for the COVID-19 vaccination have sued to hold onto their jobs, according to recent court filings.

The officers contend that Mayor Eric Adams’ administration failed to protect their religious rights and is unfairly attempting to boot them from the city payroll even though they all had continued to test for the virus each week.

They also argue that certain crimes have gone up since the pandemic, making their continued employment a key to keeping the city safe. The officers additionally contend that the Centers for Disease Control and Prevention’s loosened guidelines — which still emphasize the importance of vaccination — show that the country is in a new stage of the pandemic with less-strict social distancing and quarantine requirements.

“It is transparent that Eric Adams and the City of New York’s process to protect religious rights is both illusory and insincere,” reads the lawsuit of 18-year police officer Kyle Sutliff, filed in Manhattan Supreme Court on Aug. 15.

“In short, it’s just ‘theater,’” the lawsuit charges.

Sutliff and eight other NYPD officers have joined a growing list of municipal employees asking a judge to intervene after they’ve been fired for refusing to get inoculated.

The court cases were filed by Syosset lawyer James Mermigis who represents over 50 New York City cops, many of whom live in Nassau or Suffolk County.

He’s had some early success although legal experts say the cases are facing an uphill battle.

Manhattan Supreme Court Justice Arlene Bluth last week granted temporary restraining orders in eight of the cases, forcing the NYPD to hold up its plans to fire them until a court decision is issued.

“In order to grant one you have to find a likelihood of success on the merits,” Mermigis said.

City Law Department spokesperson Nicholas Paolucci defended the vaccine mandate.

“Each Reasonable Accommodation request was carefully reviewed under a process consistently upheld by the court,” he said.

If the city lifts the vaccine requirement, more people will call out sick and basic services likely will be disrupted, said Dr. Céline Gounder, an infectious disease epidemiologist.

“There’s a lot to be said … if you want to keep your city functioning, for continuing the vaccine requirement,” said Gounder, a senior fellow at the Kaiser Family Foundation.

Most exemptions denied 

The new lawsuits come as City Hall has denied 8,487 religious and medical accommodation applications filed by city workers since the vaccine mandate went into effect. Some 2,426 have so far been approved, according to data provided to THE CITY by the mayor’s office.

City Hall has not broken down the numbers between religious and medical requests. According to a City Hall insider familiar with the data, that’s because some employees argued they should be exempt for both reasons.

City human resource staffers have processed 91 percent of the 12,059 total exemption requests filed, according to Jonah Allon, a spokesperson for City Hall.

Approximately 8,100 of the 8,487 exemption requesters that were rejected later appealed that decision, city records show. Around 200 have been overturned by the panel of city officials handling the reviews, according to Allon.

While the number of COVID cases in New York has fluctuated over the past several months, health experts, and a former city labor commissioner, maintain that a vaccination mandate is still the best way to keep city workers safe.

“The key thing is we have to remember that science has driven a lot of these initial interventions like vaccination,” said Dr. Bruce Y. Lee, a professor at the CUNY Graduate School of Public Health & Health Policy.

“The more people around are vaccinated, the more individuals are protected,” added Lee, who created the computer forecasts used by federal officials to deal with the H1N1 “swine flu” pandemic in 2009.

Amethyst, the five-year old daughter of Erin “Toke” Tokley, a Philadelphia cop who died from COVID-19 in March, poses with a portrait of her father on Aug. 29, 2021, in Secane, Pa.
Photo: Laurence Kesterson/AP

No replacement for vax

Municipal workers who filed for some sort of vaccination accommodation have been allowed to remain on the payroll while they wait for their applications to be reviewed.

But they are required to test each week. The results of those tests must be submitted to a designated human resources person.

Lee and other medical experts stress that testing is no replacement for the vaccine, which has shown to be effective in preventing disastrous COVID outcomes.

“If you don’t have as severe COVID-19, you might not be shedding as much virus,” said Lee, who supports the vaccine mandate. “That could potentially affect transmission as well. It’s a mistaken belief that testing can replace vaccination.”

The tests are just a snapshot in time and not 100 percent accurate, he added.

And multiple studies throughout the world have shown the vaccine greatly reduces the likelihood of contracting COVID as well as the risks of hospitalization from serious ailments and death.

As such, key religious leaders around the globe — from the Catholic pope to prominent Jewish rabbis, Muslim imams and even the Tibetan Buddhist leader, the Dalai Lama — have encouraged the devout to get the shots.

Some seeking a religious hall pass have argued that the use of aborted fetal cells in medical research for vaccines is a violation of their faith, according to letters obtained by THE CITY.

Sutliff’s lawsuit also made that argument, court documents show.

“His religiously informed conscience compels him to refuse all currently available COVID-19 vaccinations, as each and every other vaccine produced and/or tested by means involving procured fetal cells, tissue, or body parts,” the lawsuit said.

Despite Pope Francis’ appeal, others looking for vaccine exemptions contend their Catholic beliefs state “man should be in the hand of his own counsel.”

Administrative hypocrisy

Government agencies have a lot of leeway, under case law, when it comes to enforcing a vaccine mandate, according to an attorney who handles civil service cases.

“In terms of the law in New York, the courts have already ruled the vaccine mandate is legitimate,” said attorney Jerold Levine, the so-called “Gun Lawyer” who specializes in weapons cases and civil service legal disputes.

“It’s an uphill battle,” Levine said, noting a recent federal court decision in favor of anti-vaccine military members that might be considered a new precedent.

In March, the Adams administration carved out an exemption for local pro athletes — like Brooklyn Nets star guard Kyrie Irving and other performers. Adams announced the executive order at a press conference in front of Citi Field as he was flanked by officials from the Mets and Yankees.

“Being healthy is not just about being physically healthy, but being economically healthy,” he told reporters at the time.

The mayor said the old rule put into place by former mayor Bill de Blasio put local teams at a disadvantage because out-of-town athletes and performers were exempt.

“This is about putting New York City-based performers on a level playing field,” Adams said. “Hometown players had an unfair disadvantage.”

The decision was blasted by union leaders representing city workers. They argued the Adams administration made different rules for their members while exempting rich athletes and performers.

The recent lawsuits by the NYPD officers echoed that sentiment. They all called the performer exemption “hypocritical” and an “abuse of discretion.”

Mermigis noted that other law enforcement agencies, like the New York State Police and departments in Nassau and Suffolk Counties, don’t have a vaccine mandate.

“All these other police officers can roam around without getting vaccinated,” he said.

Robert Linn, the commissioner of the Office of Labor Relations for most of de Blasio’s administration until his retirement in January 2019, defended the mandate for the NYPD and all New York City public sector workers.

“It is the responsible thing for an employee to be vaccinated,” he said, noting that it is also “very effective from the employer’s vantage point, to keep healthcare costs down.”

If the new lawsuits succeed, it would open the floodgates for other city workers in similar situations to get their jobs back, said Levine.

“This would be the 1849 Gold Rush if the judge rules in favor of the plaintiffs,” he said. “Everybody and their brother who got fired would be bringing cases to be restored.”

THE CITY is an independent, nonprofit news organization dedicated to hard-hitting reporting that serves the people of New York.

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