Judges uphold Murphy’s vaccine mandate for jail guards

Ruling criticizes officers’ ‘unexplained unwillingness to be vaccinated’

By: - February 11, 2022 11:46 am

New Jersey State Prison (Photo by Dana DiFilippo | New Jersey Monitor)

A New Jersey appeals court Friday upheld Gov. Phil Murphy’s vaccine mandate for correctional officers in a strongly worded smackdown of the police unions that sought to overturn the order.

Superior Court Judge Clarkson S. Fisher, writing for the unanimous three-judge panel, said the unions unreasonably placed their “unexplained unwillingness to be vaccinated” above “the interests of their fellow citizens.”

“There are times when individual self-interests like those asserted by appellants must take a backseat to the responsibilities we all have toward each other, a point President Kennedy far more eloquently expressed in his 1961 inaugural address,” Fisher said in the 34-page ruling, issued three days after attorneys argued the case in court.

Friday afternoon, the unions asked the Supreme Court to weigh in. The state’s top court can hear the appeal — or refuse to consider the case, which would let Friday’s ruling be the final say.

Officers’ unions — led by the New Jersey State Policemen’s Benevolent Association — had argued the mandate was illegal government overreach. The mandate requires unvaccinated staff to get jabbed or lose their jobs.

The state insisted it’s a life-saving necessity to stop the virus’ out-of-control spread behind bars. More than 10,500 inmates have tested positive for COVID-19 since the pandemic started, and 59 have died of COVID-related causes, state data shows.

Fisher agreed with the state’s concern that the virus spreads quickly behind bars because of prisons’ close quarters.

He rejected as “frivolous” the unions’ claim that Murphy lacks the authority to mandate vaccines.

Besides Kennedy, Fisher also cited Stanley Kubrick’s 1964 film “Dr. Strangelove” in challenging the unions’ claim that the coronavirus no longer counts as an emergency.

The New Jersey Superior Officers Association, which challenged Murphy’s mandate alongside the PBA, “seems to believe we all need to ‘learn to stop worrying and love the virus,’” Fisher wrote. “This argument suggests that once disasters and emergencies are with us for more than a short while, they cease to be disasters and emergencies and simply become a way of life.”

That’s an “illogical or dangerous contention,” Fisher added. “Indeed, it may be far more logical to assume that the duration of the pandemic is not so much a product of the virus but a product of an unreasoned and unreasonable resistance to vaccinations of some of our fellow citizens that may be the very thing preventing our emergence from this pandemic and a return to normalcy.”

During the virus’ omicron surge that started in December, nearly half of the state’s correctional staff were out sick or isolating, creating staff shortages that drove facilities to suspend visitation and limit inmates’ programs and recreational time.

Only 41% of state prison employees are vaccinated, compared with 73% of the general public. Prisons now require all staff to undergo weekly COVID testing.

The unions warned requiring vaccines would drive scores of staff to quit their jobs rather than get shots. Fisher dismissed that claim as “rank speculation” and predicted vaccines would instead reduce staffing shortages.

“Vaccinations will undoubtedly result in fewer missed workdays, fewer staffing shortages, and – not to be omitted – a lesser burden on health workers, who must engage in the treatment of these illnesses generated by a stubborn refusal to be vaccinated,” he wrote.

The same court upheld a vaccine mandate for Newark city employees last fall. In that ruling, and the decision issued Friday, the court declared no one has a constitutional right to a government job.

Under Murphy’s mandate, unvaccinated officers in state prisons and county jails must get a first shot by next Wednesday and be fully vaccinated by the end of March. Those who fail to comply face termination.

William Sullivan heads the PBA Local #105, which represents more than 5,000 state correctional officers. He said he plans to talk with others who had challenged the mandate to decide whether they will appeal further.

“I’m disappointed in the decision because I think they ruled based off personal feelings and not the law,” Sullivan said. “The fear of the coronavirus and the prolonged mandates kind of have people leery of lifting them.”

The state PBA, in a statement posted to its website Friday, lamented the ruling and said firing correctional officers for failing to get a vaccine is “a disaster for public safety.”

“Terminations for vaccine violations is going to lead to massive gaps in safety at our jails,” the statement read. “This is most certainly going to lead to more attacks on the remaining officers, who will be overworked with forced overtime. We therefore fail to understand the value of risking public safety in exchange for a vaccine that simply is not a 100% defense against a pandemic that experts say is moving toward its conclusion.”

But New Jersey Assistant Deputy Public Defender Michael R. Noveck, who had argued in court to uphold the mandate, applauded Friday’s decision.

“Since the beginning of the pandemic, we have advocated for the protection of our incarcerated clients, who are at significant risk of contracting the coronavirus because jails and prisons, by their very nature, force individuals into close contact with each other,” Noveck said.

The ruling “acknowledges that the state owes a constitutional obligation to protect incarcerated people from disease,” Noveck added. “We hope that corrections officers will respond to Gov. Murphy’s executive order by getting vaccinated, for the benefit of not only themselves, but also the incarcerated people whom they are legally obligated to protect.”

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Dana DiFilippo
Dana DiFilippo

Dana DiFilippo comes to the New Jersey Monitor from WHYY, Philadelphia’s NPR station, and the Philadelphia Daily News, a paper known for exposing corruption and holding public officials accountable. Prior to that, she worked at newspapers in Cincinnati, Pittsburgh, and suburban Philadelphia and has freelanced for various local and national magazines, newspapers and websites. She lives in Central Jersey with her husband, a photojournalist, and their two children.