A state Appellate Court on Monday ruled that Newark Mayor Ras Baraka’s executive order mandating coronavirus vaccines for city employees could take effect without having to negotiate its implementation with local police and fire unions that challenged the requirement.
Baraka issued the order in August, requiring all city employees to be vaccinated against the coronavirus or face discipline up to termination. The order gave employees 30 days to provide vaccination records after Aug. 16, but it did not give an option to test for the virus in lieu of being inoculated after that period.
The Newark Police Superior Officers’ Association filed unfair labor practice charges against the city with the Public Employment Relations Commission (PERC) in August and eight other unions representing Newark employees later joined into the case. Several Newark police and fire unions opposed the order, protesting in front of Newark City Hall earlier this month with the support of other first responders around the state.
“Given the scientifically undisputed risk of spreading this deadly virus, the City has the right to protect the public,” the appellate court judges wrote. “Similarly, requiring the city to negotiate over disciplining City employees who fail to comply with the mandate would undercut the effectiveness of the mandate.”
A spokeswoman for the city declined to comment on the ruling. Newark Fraternal Order of Police Lodge No. 12 President James Stewart told NJ Advance Media the decision was “disappointing.”
“Although courts seem to agree across the land that employees can be forced to take the vaccine or be fired, ruling its managerial prerogative, we feel the rights of the employee should not just be dismissed as something to ‘discuss later,’” Stewart said in a statement.
“Issues like being ordered to get tested while off-duty, or getting put out on unpaid leave time are things that are in contrast with the language in many of our contracts, so now we look ahead to see where PERC takes this decision moving forward.”
The city and the unions filed a motion for emergent relief with the appellate court. The ruling could set a precedent around the state for other unions and municipalities.
A PERC designee decided about a month ago that Baraka’s vaccination mandate was “an exercise of the City’s managerial prerogative,” but required the city to negotiate with the unions before implementing the order. The appellate panel’s decision on Monday reversed the negotiation aspect of PERC’s ruling.
The mayor’s executive order gave religious and medical exemptions to the mandate. Attorneys for the city said in oral arguments Baraka had issued an amended order stating the city will pay for testing and discuss discipline with the unions, according to the appellate court’s written opinion.
The unions argued that the city refused to negotiate aspects of the mandate before it filed a complaint with PERC. Unions at the protest also told NJ Advance Media that they would prefer an option to test on a regular basis if employees did not get vaccinated, much like Gov. Phil Murphy’s vaccination order for state employees.
Baraka wrote in a letter to Newark Firefighters Union President Chuck West in August that he issued the vaccine mandate to save lives.
“People are very passionate about this,” the mayor wrote at the time. “It has become completely politicized and less about science and more about whose side you are on. I will always be on the side of life and living. I have a responsibility to save as many lives as humanely possible, politics notwithstanding.”
The mayor said in his letter that at least nine Newark police personnel have died from the coronavirus. Newark has been hard hit by the pandemic, with county data showing that 1,052 city residents have died from the virus. The coronavirus was also the leading cause of line-of-duty deaths among police nationwide in 2020 and it’s on pace to again be the greatest killer for cops his year, according to multiple reports.
The appellate court judges wrote in their opinion that police and firefighters interact with many residents, including children under the age of 12 who do not have the option of getting vaccinated right now.
“There are many actions that we take as a society to protect the common good,” the appellate judges wrote. “Sometimes the protection of the many requires an individual, especially a public servant, to act for the public good. The Unions have not cited any facts that would support the purported rights of what appears to be a minority of City employees to pose a risk to coworkers and City residents.”
The appellate judges remanded future issues with the ruling to PERC.
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