Attorney Andrew Lieb Clarifies Accommodation Rights on Vaccine Exemptions on CBS NY

A federal judge has temporarily allowed health care workers in New York to skip mandatory #COVID19 vaccines if they apply for religious exemptions. He granted a preliminary injunction on Tuesday morning. Attorney Andrew Lieb shares his expertise on accommodation rights as opposed to blanket exemptions. 

CBS Appearance CLICK HERE

Fake News Alert - TX & Abbott with Employer Anti-Vaccine Mandate

Everywhere you look, the media is saying TX isn't permitting employer vaccine mandates, but that is NOT what is happening. To be clear, vaccine mandates are still permissible in TX. 

You can read Governor Abbott's Executive Order GA-40 here. 

As you can clearly see, all the Order prohibits are vaccine mandates that do not provide a mechanism for those who object to the "vaccination for any reason of personal conscience, based on religious belief, or for medical reasons, including prior recovery from COVID-19." 

This is almost entirely consistent with existing law and how, just about, every court case is shaking out with respect to vaccine mandates, with a few minor wrinkles that can't be ignored. The two wrinkles in the Order are:

1. Not utilizing the term "sincerely held" prior to "religious beliefs," which thereby seems to expand the standard in protecting religion, which doesn't appear legally problematic; and, 
2. Misstating the disability / handicap prong. 
• Under existing disability / handicap law, an accommodation is never available just because the existence of a disability / handicap renders the policy (i.e., vaccination) unnecessary, which appears to be the intention of the wording where it states, "including prior recovery from COVID-19." 
• Instead, under existing law, an accommodation is only available where a disability or handicap requires an accommodation for equality to exist. Stated otherwise, one needs a qualifying disability to receive an accommodation in the first instance, without it, there is nothing to accommodate. 
• To be clear, under existing law, having had recovered from COVID-19 is NOT a disability that is recognized. We wonder how this aspect of the Order will shake out and more so, how the Supremacy Clause will shake out if / when the Federal Government responds.  

Do you see the distinction? Does the distinction matter?

Lieb at Law, P.C. Seeks Associate Attorney To Join Employment / Real Estate Litigation Team

Lieb at Law, P.C., is seeking a complex litigation attorney to support the firm's widely expanding litigation practice. This role will work across plaintiff and defense litigation. Minimum of 1 year experience required. This position will work in the fields of employment, discrimination, commercial, and real estate litigation.

Desired qualifications:

• Drafting and analyzing pleadings, discovery, and motions;

• Resourcefulness in legal research;
• Must excel in a paperless office;
• Ability to leverage substance rather than emotion.

The firm’s practice areas include:

• Litigation: Employment Litigation, Discrimination Litigation, Commercial Litigation, Real Estate Litigation, Real Estate Brokerage Litigation, Title Litigation, Plaintiff Personal Injury, Landlord/Tenant, Estate Litigation and more.
• Employment Litigation, Compliance and Trainings: Discrimination, Harassment, Retaliation, Wage and Hour, Restrictive Covenants, Family Medical Leave Act, Alternative Dispute Resolution, Appeals; Employee Handbooks and Policies, Sexual Harassment and Discrimination Training, Wage and Hour Audits & more.
• Legal Compliance for Regulated Industries: Outside Compliance Counsel for regulated professions, Policy Drafting, Policy Implementation, Auditing, Corporate Compliance Trainings.
• Transactions:Commercial and Residential Real Estate Purchase and Lease Transactions, Business Transactions and Negotiations.

Qualifications:

Excellent critical thinking, writing, organization and research (Westlaw) skills. Must be technologically savvy.

10 reasons to work at Lieb at Law:

1. Growth – we are expanding and have tremendous opportunities for you to grow your career

2. Prestige – our attorneys are quoted in newspapers and interviewed on TV / radio; we provide opportunities to teach continuing education to brokers and attorneys

3. Fun – we have a ping-pong table, a BBQ committee, and staff that truly like each other

4. DEI – we don’t just have it internally, but focus our practice on employment and housing discrimination trainings and litigation so that we can help other business bring equity and inclusion into their realms as well

5. Technology – we leverage cloud-based / cutting-edge case management, task management, document generation, and more

6. Media – we have a PR team on retainer, host a weekly podcast, have our own studio, and we want you to be a part of that too

7. Business Differentiator – we own and operate a NYS licensed real estate school with over 10,000 students and countless courses on all fields of real estate law

8. Support – we own a licensed school so clearly, we know how to teach you; not only can we teach you, but we make learning easy because we operate with open doors in a collaborative environment and your success is our goal

9. Life Balance – work hours and billing requirements are reasonable and flexible so that you can have a life outside of the office

10. Respect – you are important, and we will treat you as an equal, not a subordinate

About Lieb at Law, P.C.:

Lieb at Law, P.C. offers legal services with a focus on litigation, discrimination, employment, and real estate. Additional practice areas include real estate brokerage, title disputes, contractual / commercial litigation, landlord / tenant, estate litigation, mortgage foreclosure, surrogate’s court litigation, plaintiff's personal injury / premises liability, land use / zoning, business and real estate transactions. Attorneys at Lieb at Law, P.C. are admitted to practice law in New York, New Jersey, Connecticut, and Colorado while also practicing in the Federal Courts.

The firm is a substance-first law firm where self-confidence, grit, and skill is celebrated and rewarded.

Staff have access to a cloud-based legal research platform so that the latest cases are available everywhere, including at home and in the courtroom. We have a secure, cloud-based case management system that catalogs every thought and action on each matter so that case facts are readily accessible at the stroke of a computer key. Finally, enterprise file sharing, storage, and collaboration software is leveraged to enable the efficient collaboration between attorneys where case strategy and document preparation is fresh and innovative.

We are media legal analysts who appear on TV / radio nationwide. We teach the law that we practice, in continuing education and corporate trainings, so we force ourselves to always stay on the cutting edge of new statutes, regulations, and cases. Lieb at Law is a modern law firm that is at the vanguard of the profession.

Common surfaces are cleaned frequently, masks required for anyone in the office that is unvaccinated. All staff is vaccinated.

TO APPLY EMAIL COVER LETTER AND RESUME TO CAREERS@LIEBATLAW.COM

PODCAST: NBA Indictments, College Athlete Unionizations, Fantasy Sports Legality and More...

Attorney Andrew Lieb Instructing Virtual CLE on Workplace Accommodations and Vaccine Mandates at Suffolk County Bar Association

 Workplace Accommodations and 

Vaccine Mandates

October 20, 2021

12:30 p.m. - 1:20 p.m.

Zoom Webinar

As mandatory COVID-19 vaccines become more prevalent, many employers are asking what they can do if workers refuse. Some employers are firing workers who won't take the vaccine and others are requiring unvaccinated employees to submit to weekly testing. Under federal, state and local law, employers must provide reasonable accommodations and many employees are asking if they can legally receive exemptions from vaccine mandates.  In this course you will learn:

• To articulate the elements of a failure-to-accommodate lawsuit

• To understand the extent that a sincerely held religious belief can be challenged internally by an employer, within the interactive process / cooperative dialogue, and before an administrative / judicial tribunal 
• To define an undue hardship, under both Title VII of the Civil Rights Act and NYS Human Rights Law

 

Faculty:

Andrew Lieb, Esq., Lieb at Law, P.C.

 

Register online:  https://scba.org/?pg=events&evAction=showDetail&eid=229742&evSubAction=listMonth&calmonth=202110

SALT Tax Deduction Limit is Valid per Second Circuit Court of Appeals

Back in 2017, the Tax Cuts and Jobs Act capped SALT deductions at $10,000. 

To remind you, SALT deductions permit "taxpayers to deduct from their taxable income all the money they paid in state and local income and property taxes." As a result, it saves residents in high tax states from having to pay a lot of money to the federal government because they already paid a lot of tax to their state. States like New York, Connecticut, New Jersey, and Maryland have really high state and local taxes and therefore, residents of these states were hurt the most when Congress capped SALT deduction at $10,000. 

To fight for their citizens and for their sovereignty, these four states sued the federal government "asserting that Congress's new cap on the SALT deduction either is unconstitutional on its face of unconstitutionally coerces them to abandon their preferred fiscal policies." 

Stated otherwise, the states argued "that the SALT deduction cap violates both Article I, Section 8 and the Tenth Amendment [and the Sixteenth Amendment] because it coerces them to lower taxes or cut spending."

The states lost in New York v. Yellen and the $10,000 cap remains. 

According to the Second Circuit, the states failed to demonstrate "how the 2017 cap on the deduction unconstitutionally undermines their state sovereign authority over fiscal matters or their ability to raise revenue." 

Yet, it seems pretty intuitive, no?

Do you think this should go to the Supreme Court? 

If not, will a Democratic Congress, led by a Senator from New York, act to reinstitute the full SALT Tax Deduction, which has been the law of the land since 1913 when the 16th Amendment was ratified and Congress first became empowered to "lay and collect taxes on incomes, from whatever source derived without apportionment among the several states"? 

The US Supreme Court's Term Starts Today - What You Should Know...

There are 3 major topics that you should be on the watch for as the Supreme Court's term starts on the first Monday of October, and they all center around the conservative's 6-3 majority on the bench. With their majority, will the conservatives limit abortion, expand gun rights, and protect religion? 

Here is what you should know: 

Abortion: Every pundit out there is telling you that Roe v. Wade is in danger during this term because Mississippi's 15-week abortion law will be heard in the case of Dobbs v. Jackson Women’s Health, which will be argued on December 1st. 

You should know that Roe sets the state's right to restrict abortion at the point of viability, except if abortion is necessary, in appropriate medical judgement. However, hasn't the point of viability shrunk over the years from when Roe was decided in 1973. On the other hand, as Carliss Chatman wrote, in the Washington and Lee Law Review, "If a Fetus Is a Person, It Should Get Child Support, Due Process, and Citizenship," no? It seems that you need to go all in with whichever belief you have as anything short seems like you will be full of pure political conjecture - when do you think that a fetus is first a person?  

Guns: New York State (NYS) went after the National Rifle Association (NRA) in Bankruptcy Court earlier this year, and, now, it's the NRA's turn to come after NYS. The NRA is before the Supreme Court by backing the New York State Rifle & Pistol Association in New York State Rifle & Pistol Association v. Corlett. The case asserts that NYS' concealed carry license law, which requires "proper cause" to carry a firearm, is unconstitutional. The case will be argued on November 3rd. 

You should know that "proper cause" means that an individual must demonstrate a special need for self-protection as distinguishable from that of the general community in order to carry in the State. Do you think that this makes sense as a standard or should concealed carry just be blanketly permissible, as the Plaintiff's argue is their right under the Second Amendment? On the other hand, don't unsafe public spaces offend the First Amendment's protections of assembly, association, and speech? It seems like we have an Amendment standoff and wouldn't restrictions on guns in public spaces be appropriate to make public spaces safe for democratic participation, as argued by the New York Civil Liberties Union in the case? What say you on this tough one? 

Religion: Flags and religion have been the biggest thing for the Republican Party since the 2020 elections and they are coming together in Shurtleff v. Boston where Boston flew a LGBT rights flag, but not one with the cross at city hall. Now, the Christians want their cross over the City, but what about the separation of Church and State in the First Amendment? 

You should know that freedom of religion is protected in the First Amendment, but that LGBT rights are not. However, is religion free if the state picks one over another? On that note, do you remember the separation of Gay and State being in the Constitution, because I don't? 

What Really Matters: The public is often looking for something that doesn't exist. As Justice Alito explained in response to tremendous outrage by abortion groups at the Supreme Court refusing to stop the Texas abortion law, those allegations are "false and inflammatory... "[w]e did no such thing and we said that expressly in our order." Instead, the Court ruled on procedure and that was lost on everyone who just reads salacious headlines with the word abortion in the title. If you actually read the decision, it's not about abortion at all, but, actually about something much more decisive and terrifying. 

You should know that Chief Justice Roberts explained that the real question in the case was "whether a state can avoid responsibility for its laws" by "essentially delegat[ing] enforcement to...the populace at large." Stated otherwise, the law let private citizens sue whoever they found to have violated the law. Taking that to its logical conclusion, should we deputize neighbors to sue each other for violating our laws? Should we be able to get $5,000 if we go after a neighbor for speeding on the highway? What about $7,500 for littering? Maybe, $25,000 for dealing drugs? Is that the future that we want? You decide.

 

Guidance Published for Federal Contractors and Subcontractors on COVID Vaccinations

As you may recall, all federal contractors now have vaccination requirements because of Executive Order 14042, as discussed in our blog here.

The Order requires that all contracts between federal contractor and subcontractor contain a clause ensuring compliance. However, the specifics of that clause were unknown until September 24, 2021, when the Safer Federal Workforce Task Force (SFWTF) published guidance, which requires:

• Vaccinations of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accomodation; 
• Compliance by individuals, including covered contractor employees and visitors, with the  guidance related to masking and physical distancing while in covered contractor workplaces; and 
• Designation by covered contractors of a person(s) to coordinate COVID-19 workplace safety efforts. 

The SFWTF guidance requirements for federal contractors and subcontractors are similar to the ones imposed upon NYS healthcare workers, which also require full vaccination as a condition of employment. 

Do you think we are going to see the same lawsuits and pushback on this requirement as we did in the healthcare setting?  

Will there be lots of employees quitting their jobs rather than complying? 

Is SFWTF overreaching in its efforts to stop the spread of COVID-19 or did they get it right? 

NYC School Employees Go to Justice Sotomayor of the Supreme Court for Relief - Should They Get It?

In their best written papers to date, NYC school employees argued to the Supreme Court that they need a stay of the October 1, 2021 deadline to get vaccinated. 

They argue that the vaccination order prevents them from lawfully pursuing their occupation, which is a fundamental Due Process right. They claim that their alternative options of private school teaching, adult or continuing education teaching, or private tutoring are not pursuing their occupations completely. Nonetheless, they fail to address whether taking "their certifications and seek[ing] employment in any other public school system... in the State," would be pursuing their occupations completely, as NYC had argued before the Second Circuit. 

Regardless, the issue of whether the employees can still pursue their profession is where the case is likely to be decided. In their opposition before the Second Circuit, the City had argued and emphasized that Due Process protection is only afforded if "a plaintiff is completely prohibited from engaging in his or her chosen profession." However, the school employees now argue that "a violation of one’s fundamental right to pursue an occupation exists and gives rise to a due process claim where there is less than a complete inability to practice one’s profession." Which one is it? Who is right? 

What do you think the law should be? 

The other argument advanced by the school employees is that the vaccination order should have given them an option to opt out of vaccination for weekly testing because school staff should be treated equally to firefighters and police officers who have that option. While this seems like a good argument in an initial read of the papers, the school employees' argument that firefighters and police officers present a greater risk to spread COVID because they have contact with the public as opposed to school children who have less severe COVID fails the smell test when it's considered that adults can be vaccinated and those under 12 years of age cannot. However, we will see. 

Minimum Wage Workers Outside NYC, Suffolk, and Westchester Counties May Soon Receive a Boost in Hourly Wages

A proposed rule at 12 NYCRR 141 will increase basic hourly minimum wage for non-farm workers outside of New York City, Nassau, Suffolk and Westchester counties, from $12.50 to $13.20. 

This proposed rule is in compliance with the minimum wage requirements at Labor Law 652(6). 

Although 70 cents may not be considered impactful by many, those struggling to afford monthly expenses, especially during the ongoing COVID-19 pandemic, will certainly benefit from such an increase. 

To voice your support or opposition to this proposed rule, comments should be sent to Michael Paglialonga, NYS Dept.of Labor at regulations@labor.ny.gov by November 29, 2021. 

NYS Bill to Allow Unemployment Benefits to Vaccine Refusal Firings

NYS Senator Alexis Weik Sponsored a bill that provides eligibility for unemployment insurance for "unemployment due to such employee's choice not to receive a coronavirus vaccine."

While this bill is nowhere near being enacted, do you agree with the Senator?

Is this bill perpetrating the spread of a deadly virus by empowering people to make stupid decisions that will lead to deaths or is it the right move to support liberty - my body my choice?

You decide - tell your NYS representatives if you support this bill or strongly oppose it!

NYC Permitted to Require Vaccinations of School Employees by Second Circuit Court of Appeals

 According to the Second Circuit:

This Court entered a temporary injunction in the above-captioned case on Friday, September 24, 2021 for administrative purposes pending decision by a three-judge panel. IT IS HEREBY ORDERED that the September 24 injunction is DISSOLVED. IT IS FURTHER ORDERED that the motion for an injunction pending appeal is DENIED.

That said, not getting vaccinated does not equal automatic termination. 

As the City explained in their opposition to the injunction, "even employees who object to vaccination... can elect to stay home and retain their positions while being placed on unpaid leave with healthcare until early September 2022... And even if plaintiffs decline the extended leave option, the earliest any steps would be taken to terminate their employment would occur in December 2021." 

So, "employees who fail to submit proof of having received one dose of vaccination by September 27, 2021, are to be placed on unpaid leave with health insurance the following day. [internal citation] But an employee who submits proof of vaccination before November 30, 2021, will be able to return to work within a week. [internal citation] And an employee who submits proof of vaccination thereafter, but before September 5, 2022, will be able to return to work within two weeks." 

As to accommodations, the City is granting accommodations "for a religious or medical" needs. However, an underlying arbitration on the matter set "an alternative to any statutory reasonable accommodation process... for the 2021-2022 school year" where the deadline for "any requests to be considered as part of this process... [was] no later than Monday, September 20, 2021, by 5:00 p.m." Therefore, any school employee who has not yet applied for an accommodation, CANNOT get one. 

The City's opposition summed this entire situation up nicely where it stated, "Put bluntly, plaintiffs do not have a substantive due process right to teach children without being vaccinated against a dangerous infectious disease."

With Hospital and Healthcare Shortages Looming Following the Vaccination Deadline, Gov. Hochul Releases Comprehensive Plan

On September 25, 2021, Gov. Hochul released a comprehensive plan to address possible shortages within hospital and health care facilities in preparation for today's vaccination deadline. 

The plan includes the following: 

• Signing an executive order (if necessary) to declare a state of emergency that would increase workforce supply in the hospital and health care facilities and allow qualified health care professionals in other states or countries, recent graduates, and retired health care professionals to practice in New York;
• Exploration of ways to expedite visa requests for medical professionals; 
• Possible deployment of medically-trained National Guard members; &
• Partnering with the Federal Govt. to deploy Disaster Medical Assistance Teams ("DMATs") to assist local health and medical systems. 

Gov. Hochul stated that the New York State DOL has issued guidance to clarify that terminated workers will not be eligible for benefits unless they have a valid physician-approved request for medical accommodation. 

Gov. Hochul is clearly preparing for a likely healthcare staffing shortage caused by today's vaccination deadline.

Will today's vaccination deadline, seeking an increased number of vaccinated healthcare workers, outweigh the immediate impact of terminated staff? 

Time will tell...

Estate Tax Exemption is About to be 1/2'd - Get Planning Now

The Tax Cuts and Jobs Act ("TCJA") caused the gift, estate, and gift-skipping transfer ("GST") tax exemptions to be $11.7 million per person in 2021. However, it is scheduled to decrease to $5 million, adjusted for inflation on January 1, 2026. Have you been planning for that cliff? 

Even scarier for estate tax planning is the Build Back Better Act, which is a projected $3.5 trillion COVID-19 plan proposed by President Biden to create jobs, cut taxes, and lower costs for working families, which includes lowering taxes, prescription drug, childcare, health care, and education costs. This law proposes to accelerate the estate tax exemption decrease by four (4) years, to January 1, 2022. 

Yet, the Build Back Better Act is not yet enacted into law. It is currently being marked up by the House Ways and Means Committee. 

Have you spoken to your congressperson about your feelings about speeding up the estate tax exemption cliff? 

Do you think it should be included in the Build Back Better Act? 

Stay tuned for updates concerning the Build Back Better Act in the upcoming weeks to follow... 

Podcast | Social Media Posts Can Disprove Your Religious Exemption For Vaccine Mandates

The Lieb Cast discusses how your social media posts can disprove your religious exemption to vaccine mandates in the workplace. Plus we discuss how employers information requests could be actionable coercion / retaliation and a failure to engage in the interactive process. 

PODCAST LINK: Social Media Posts Can Disprove Your Religious Exemption For Vaccine Mandates

Sincerely Held Religious Beliefs are Undermined by Social Media Posts About Politics

If you want to avoid a workplace vaccine mandate, be very careful what you post on social media about politics and vaccines.

According to the U.S. Equal Employment Opportunity Commission's Questions and Answers: Religious Discrimination in the Workplace, "[s]ocial, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII." This is cited in the EEOC Compliance Manual § 12–I(A)(1).

Instead, per the EEOC, a religious belief concerns “ultimate ideas” about “life, purpose, and death."

To qualify for a vaccine exemption, you need a religious or medical reason, not a political one. 

In fact, employers are already combing the internet to confirm whether your claimed religious belief is insincere and merely a manifestation of your politics. Taking this a step further, if you sue your employer for failing-to-accommodate your religious beliefs, be warned that your social media posts are fair game and are a gold mine for a good trial lawyer who will tear you apart on the stand. 

As background, the underpinnings of the EEOC's position stems from the United States Supreme Court, which first set the test for a sincerely held religious belief in U.S. v. Seeger, when conscientious-objectors sought accommodations from service in the armed forces (a/k/a, draft exemptions). Per the Supreme Court, the test is "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." This test was adopted to the employment discrimination context by the Third Circuit Court of Appeals in Protos v. Volkswagen of America, Inc. 

Back to you. An employer can and should challenge whether you sincerely hold your espoused religious belief before granting you an accommodation from its rules and policies, like a vaccine mandate. 

As an illustration of what you are looking at in such a challenge, see the case of Sidelinger v. Harbor Creek School Distr., where an employee sought a religious exemption from his employer's "requirement of wearing an identification badge" because of his claims that wearing a badge evoked the "sins of pride and hypocrisy contrary to his religious belief... [as] an old-fashioned, very conservative Roman Catholic." In the case, the District Court made clear that while it would not question the truth of the belief, it would certainly question whether the employee truly held that belief. Further, the Court emphasized that it is an employee's burden "to show that he holds a sincere religious belief in conflict with his employer's requirements." Finally, the Court explained that an employee's sincerity and credibility are the basis for a factbinder's assessment, which includes internet posts. By the way, the Court found that the employee did NOT qualify for a religious accommodation. 

Are your claimed religious objections to the COVID vaccine sincere or BS political crap? 

Attorney Andrew Lieb Addresses Hearsay About Vaccine Mandates in the Workplace on Newsy

Sharing Attorney Andrew Lieb's interview on Newsy - He addressed hearsay about vaccine mandates in the workplace such as: Do you get unemployment if you get fired for refusing vaccination?

Click HERE to watch the Interview

Podcast | Legal Breakdown and Analysis of Biden's Employment Vaccine Mandate

 The Lieb Cast answers the following questions about Biden's employment vaccine mandate in the latest podcast: 

1. Can Biden / OSHA issue an Executive Order / Regulation mandating employment vaccines? 
2. Can the Federal Congress issue a statute mandating employment vaccines or is that a state's rights issue?
3. What is the precedent for an individual state to issue a vaccine mandate and would it be upheld?
4. Does it matter if an individual state's Governor or Legislature issued an employment vaccine mandate for enforceability?
5. How does a sincerely held religious belief against vaccines avoid employment vaccine mandates?
6. How can employers refuse an accommodation who has a disability or sincerely held belief and requests to avoid an employment vaccine mandate?

Plus, we discuss brisket, ice cream, 9/11, Rosh Hashanah, Yom Kippur, horse dewormers, and most importantly, we break down the hiring / staffing issues faced by employers everywhere.

Link to Podcast: https://www.listentolieb.com/876124/9172946-legal-breakdown-and-analysis-of-biden-s-employment-vaccine-mandate

Are Minimum Income-to-Rent Policies Discriminatory?

Landlords and brokers should pay close attention to Long Island Housing Servs. Inc. v. NPS Holiday Square LLC in the Eastern District of New York. 

This case addressed whether minimum income requirements for rentals are discriminatory. 

What do you think?

Should a landlord be able to screen tenants based on their income?

The landlords in this case utilize "a two-to-one income requirement, which generally requires applicants without housing vouchers to have an income double the monthly rent." If they have vouchers, the vouchers are credited "as one month's rent and [the] applicants [] have [to have] an income equal to between 80 percent and 100 percent of one month's rent." 

To be discriminatory, this policy would have to have "'a significantly adverse or disproportionate impact' on housing voucher users." 

Currently the plaintiffs and defendants are battling over experts, but this case is going to teach landlords, brokers, property managers, and the like how to frame their policies moving forward. 

So, keep a close eye on this one. 

Vaccine Requirement for NYC Teachers Temporarily Restrained

The New York State Supreme Court (lowest level court with jurisdiction) issued a temporary restraining order until the sooner of a hearing or 9/22/21 concerning New York City's vaccine mandate for public education employees who instead argue for a Vax-Or-Test policy. 

To see the arguments yourself, in The New York City Municipal Labor Committee et al vs. The City of New York et al, click here. 

Specifically, the Order, at issue, "requires [vaccines for] all DOE staff, City employees, and contractors who 'work in person in a DOE school setting or DOE building'; and '[a]ll employees of any school serving students up to grade 12 and any UPK-3 or UPK-4 program that is located in a DOE building who work in-person, and all contractors hired by such schools or programs to work in-person' to – no later than September 27, 2021"

The teachers union makes three arguments against the Order, as follows:

• "[B]odily integrity and the right to refuse medical treatment;"
• A violation of "due process rights" because it prevents "permanently-appointed DOE and City employees declining vaccination from engaging in their employment;" and 
• It "fails to provide required exceptions for those with medical contraindications or sincerely-held religious objections". 

The best argument is clearly the third because "DOE has advised that it will not allow those with medical or religious exceptions – should those be accepted – to continue working in person under a strict testing regimen, or remotely with those students receiving remote instructions. Nor is it clear at this stage how those who refuse vaccination will be treated as to leaves, benefits, and other statutory rights." 

While DOE may be able to refuse a given accommodation request that results in an employee working in a building, accommodations must be decided on a case-by-case basis, under binding law, and therefore, such a blanket policy is legally problematic. 

As we've been suggesting from the outset, NYC Government should negotiate with the Union as to appropriate accommodations. Think about it like a class action of the cooperative dialogue (required mediation following an accommodation request under NYC employment discrimination law).

Otherwise, NYC Government will continuously find itself engaging in individualized cooperative dialogues with each employee that requests an accommodation. That is a financially infeasible result for NYC plus it will cause many teachers to bring suit following each cooperative dialogue. All of this can and should be amicably resolved through advance negotiations by giving the Unions a seat at the table.