ALBANY — Gov. Kathy Hochul doubled down to defend the state’s vaccine mandate for health workers, expressing confidence the legal mandates will hold up in court following several challenges from workers’ unions and affected employees.
The state’s COVID-19 vaccine mandate for hospital and nursing home workers started at midnight. Workers need to have had their first vaccine dose Monday or face losing their jobs today.
Hospitals statewide have started to curb elective surgeries and procedures due to anticipated staff shortages when the controversial mandate goes into effect.
“I feel very confident about our changes in court going back to 1905,” Hochul said Monday at the Bay Eden Senior Center in the Bronx.
She was referencing an influential U.S. Supreme Court decision from the era.
During the 1902 smallpox outbreak in Cambridge, Mass., municipal health officials ordered all citizens vaccinated to curb the spread of the disease. Health officials were acting in compliance with a Massachusetts state law empowering them to mandate vaccinations if deemed necessary for public health or safety.
The 1905 plaintiff in Jacobson v. Massachusetts, Henning Jacobson, refused to be vaccinated, insisting he had a 14th Amendment right “to care for his own body and health in such a way as to him seems best.” He was then fined $5 by the state of Massachusetts.
At least one COVID vaccine dose, or else a medical exemption, deferral or a religious exemption must be in place for New York health staff to be eligible to work after Sept. 27.
“We have a right to defend our people against a global pandemic and we’re entitled to take all means necessary to do that,” the governor said. “This is all about self-defense. I’m here to defend the people of New York.”
The state of California is expected to implement a similar mandate in the coming weeks.
Hochul, while wearing a ‘vaxxed’ necklace, also expressed confidence Monday that legal challenges to the vaccine mandate based on religious exemptions will not hold. Last week, U.S. District Court Judge David Hurd of the state’s Northern District extended a temporary restraining order for health workers affected by the vaccine mandate who refused the shot based on religious exemption.
The restraining order is in effect for workers requesting a religious exemption through Oct. 12.
The legal challenge based on religious exemption will not hold up in court, said Hochul, who worked as a legislative counsel early in her career.
“There’s not a legitimate [reason] for religious exemptions because the leaders of all the organized religions have said there’s no legitimate reason,” Hochul said. “We’re going to win that in court in a matter of days.”
Attorneys with Thomas More Society responded to Hochul’s assertions in a statement Monday. The society had requested the preliminary injunction.
Hurd is expected to deliver a decision before Oct. 12.
“New York’s Gov. Hochul is using every strong-arm tactic she can to attempt to coerce employees into taking vaccines against their will,” Thomas More Society special counsel Christopher Ferra said Tuesday. “She is also demonstrating disrespect, at a minimum, if not outright hostility to the deeply held religious convictions of our clients as well as thousands of others.
“We have solid grounds for prevailing on our motion for a preliminary injunction,” he continued. “The governor’s bullying is intended to coerce as many as possible into taking the vaccine before the court rules. And now she threatens to declare a state of emergency based on the emergency she herself has created by calling for the firing of dedicated frontline health care workers who were yesterday’s heroes but are suddenly pariahs because they will not bend to the governor’s arbitrary will. The same doctors and nurses who treated patients for 18 months without being vaccinated — often contracting COVID, recovering, and returning to front line medical care — are now being depicted as disease-carrying villains. This is not science. This is demagoguery.”
Tens of thousands of workers across the state remain unvaccinated. As of Sept. 22, 84% of all the state’s hospital employees were fully vaccinated. As of Sept. 23, 81% of staff at adult care facilities, and 77% of staff at nursing homes were fully vaccinated, according to the governor’s office.
Hochul was set to sign an executive order by the end of Monday to give her the authority to use the National Guard, recruit retirees and bring in supplemental health workers from out-of-state, or from other countries.
Hochul will explore reassigning workers from facilities with high vaccination rates to places that need help, she said.
Downstate facilities are better off than many health facilities upstate, Hochul said.
The governor did not have exact numbers of statewide health staffers expected to lose their jobs under the mandate as several health workers continued to get vaccinated against COVID-19 Monday — their final day to get at least one vaccine dose to stay employed in a New York facility.
Many hospitals in the Capital Region, Western New York, the North Country and other areas around the state report higher patient volumes, and a record number with flu or COVID-like symptoms.
State Republican Party Chair Nick Langworthy blasted Hochul as a “bully” for imposing the mandate on frontline health workers already stressed by the pandemic.
“In a very short window of time, Gov. Hochul is demonstrating she’s just as big of a bully as Andrew Cuomo ever was,” Langworthy said to reporters in New York City on Monday. “New York health workers, both private and public, will have a vax mandate thrust down on them that makes them choose between their career they devoted their lives to and losing their jobs if they don’t get the vaccine.”
State and federal officials who rail against vaccine mandates cite the constitutional need for personal choice and medical freedom.
Langworthy is vaccinated, he said, and believes in the COVID vaccine, but added people with religious or medical concerns should not be legally dismissed.
“Get stuck by the needle or get fired is what Kathy Hochul has to say,” he said. “Hospital workers, which there is a shortage of to begin with, are kicked to the curb if they refuse the mandate. It’s wrong, it’s unconstitutional and it’s un-American, and people need to remember this when Kathy Hochul steps forward and asks for your vote next year.”
The mandate is not necessary, Hochul said, if every person did the right thing and got vaccinated against COVID-19. Breakthrough coronavirus infections are on the rise with strengthening variants of the fatal disease, which has killed at least 54,769 New Yorkers to date.
“My desire is to have the people who’ve been out there continue to work in their jobs working in them safely,” the governor said. “To all the other health care workers who are vaccinated, they also deserve to know that the people they’re working with will not get them sick.
“...Your co-workers want you to do this — don’t make the burden heavier on them as well.”
In a statement on Monday, Assemblyman Steve Hawley, R-Batavia, said he was outraged by the mandate.
“Taking jobs from healthcare workers who have been working harder than anybody to combat the COVID-19 pandemic is a slap in their face, and I am incensed by the governor’s willingness to cast aside a group of highly-skilled people who have saved the lives of so many New Yorkers,” he said. “The valuable experience these professionals have in fighting COVID-19 will be squandered, and the ones who will pay the price for this decision are those who need the highest quality of care possible to save their lives. I am vaccinated and would encourage anyone who wishes to be vaccinated to do so, but I also believe in personal choice, and with no option for unvaccinated healthcare workers to elect for frequent testing, this mandate will only harm our ability to help patients who need care most.”