Judges: Newark vaccine mandate can go forward without restrictions

Court strikes earlier decision that discipline, timing be negotiated with unions

By: - September 27, 2021 12:47 pm

Union arguments about the mandate infringing on constitutional rights met with a stony reception. (Photo by New Jersey Monitor)

An appellate panel reinforced Newark’s right to enact a vaccine mandate Monday by vacating portions of an earlier decision that required the city negotiate certain aspects of its union-opposed immunization policy.

The three-judge panel reversed injunctions issued by the Public Employment Relations Commission last month, with the newer decision finding Newark Mayor Ras Baraka has the authority to issue an order requiring all city employees to provide proof of full vaccination.

Union arguments about the mandate infringing on constitutional rights met with a stony reception by the appellate judges.

“It has long been established that there is no constitutional or statutory right to a government job,” Judge Robert J. Gilson wrote in the decision, adding, “Consequently, city employees have the right to get vaccinated and keep their jobs or decide that they do not want to work for the common good.”

Attorneys for the city and the Newark Superior Officers Association and Firefighters Union did not immediately return calls seeking comment, and it’s not clear whether the unions will petition the New Jersey Supreme Court for a second appeal.

The Newark decision will likely have an impact on local vaccine mandate suits elsewhere in the state. Police officers in Wayne have also objected to that township’s requirement that its employees be vaccinated.

The PERC decision in the Newark matter, issued in a case initially lodged by the city’s police and firefighter unions and later joined by eight other unions representing city employees, allowed the vaccine mandate to stay but required the city negotiate provisions on discipline, virus testing, and timing with the unions.

On appeal, the unions argued the mandate violated rights afforded to them under the New Jersey Employer-Employee Relations Act, but the judges found the unions did not show that would be the case.

The unions, the judges said, did not cite any portions of their contract that could block the city from issuing a mandate. The court said no such provisions exist.

Newark’s attorney, meanwhile, argued requiring provisions on discipline and timing to be negotiated would effectively neuter the vaccine mandate by allowing those who wished to forgo vaccination to do so free of consequences.

The court agreed, finding a requirement to negotiate discipline would “undercut the effectiveness of the mandate.”

The unions also argued the city lacks the authority to enact a vaccine mandate, noting the mandate in Jacobsen v. Massachusetts, the 1905 U.S. Supreme Court decision that marked the constitutionality of vaccine mandates, was imposed in compliance with enabling statutes.

Monday’s ruling says mandates imposed at the national, state, and local levels support Newark’s authority to require its workers be vaccinated, and it also notes health risks unvaccinated government workers pose to the public.

PERC’s decision in a case over Wayne’s vaccine mandate, also brought by police and fire unions, was near identical to the one it issued in Newark. That ruling, also issued in August, upheld the mandate but required the city negotiate on discipline, among other things.

Wayne’s mandate, like Newark’s, allows for religious and medical exemptions.

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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.

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