The Appellate Division recently issued an employment law decision in the case of Matter of City of Newark and Newark Police Superior Officers’ Association, et al., concerning the ability of public employee unions to challenge the City of Newark’s COVID-19 vaccination requirement. The Court expressly held that the City has the right to require these vaccines as a requirement of continued employment. Moreover, it held that not only does it have that right, but it has no concurrent duty to negotiate with unions over the requirement.
Although this case was decided in the context of whether the vaccine requirement was a matter which needed to be negotiated between the City and its law enforcement employee unions, it appears to slam the door on objections by public employees to employer COVID vaccine mandates, and it probably shuts the door for private sector employees to make that argument as well.
The Appellate Division explained: “When a public health emergency exists, governmental entities, including local authorities, have a recognized right to require vaccinations.” The Appellate Division explained that this right exists even in the absence of a statute giving the City that authority.
The Court also cited to a 1905 decision by the United States Supreme Court in the case of Jacobson v. Commonwealth of Massachusetts. In that case, the Supreme Court upheld Massachusetts’s criminal penalties for a person refusing to be vaccinated. For those who argue that this the law is not clear on vaccinations, it is worth quoting verbatim from Justice Harlan’s opinion.
According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. It is equally true that the State may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety.
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The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that “persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be made, so far as natural persons are concerned.”
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[I]t cannot be adjudged that the present regulation of the Board of Health was not necessary in order to protect the public health and secure the public safety. Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large, was arbitrary and not justified by the necessities of the case.
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We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of the State. If such be the privilege of a minority then a like privilege would belong to each individual of the community, and the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual who chooses to remain a part of that population. We are unwilling to hold it to be an element in the liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the State.
Thus, the takeaway is that public employers have the right to require their employees to receive COVID vaccines. Therefore, absent a valid religious or medical exemption, termination or other discipline of an public employee for refusing to receive the COVID vaccine in accordance with a requirement by her government employer will be upheld.
The broad language in the City of Newark opinion also implies that private sector employers have this right as well, but no New Jersey court has addressed this issue squarely yet. Also left for another day is how the courts might address vaccine requirements for a virus where the scientific consensus on both the threat and the vaccine are not so clear, or where other governmental authorities have not recognized such a severe threat to public health and safety.
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