NYC vaccine mandate reversal comes too late for some

Before local authorities instituted a vaccine mandate, Curtis Cutler served as a deacon, lived with his wife and son in a home they owned, and worked for the New York City sanitation department. Another longtime city employee, Matthew Keil, worked for the city’s education department for more than 20 years. Keil also served as a deacon in his Russian Orthodox church while raising his six children, including a child who has Down syndrome.

Their lives were turned upside down when an October 2021 order by the city required all employees to get vaccinated against COVID-19 or be fired. Because of their faith, Cutler and Keil had not been vaccinated. The city’s mandate forced them to choose between their jobs and staying faithful to their beliefs—an agonizing choice shared by hundreds of firefighters, teachers, EMTs, police officers, and other employees of faith.

Cutler lost his job and his health insurance, so he was unable to support his son who suffered a collapsed lung, according to a brief from Alliance Defending Freedom. After losing his job, Cutler and his wife later sold their home and moved out of state, a decision that split the family when his son was left behind to finish high school. When Keil’s request for a religious exemption was denied, he had to turn to food stamps to feed his family.

Employees like Cutler and Keil finally saw forward movement last week in their legal battle against the city. A federal appeals court heard oral arguments in their case on Feb. 8.

Two days earlier, Mayor Eric Adams announced the city would rescind the controversial vaccine mandate for city employees as of Feb. 10. His news release stated that the approximately 1,780 unvaccinated former employees who had lost their jobs would not automatically regain them. They would have to follow normal hiring procedures to apply for any open positions.

Several groups of former employees sued the city in federal district court in three lawsuits in late 2021 and early 2022, seeking emergency relief from the vaccine mandate. Courts denied all requests for immediate relief, and two of the lawsuits were dismissed.

The 2nd U.S. Circuit Court of Appeals consolidated the appeals in the fall of 2022. By then, as described in a brief filed in court, most had lost their jobs or been forced to resign. Many had also lost their homes and their ability to find new jobs.

Their attorney at the federal appeals court, John Bursch from Alliance Defending Freedom, enumerated blatant violations of the First Amendment and unequal treatment in his brief.

Bursch described how the employees first sought religious exemptions from the city. Cutler stopped receiving vaccines years earlier when he became a Christian. The city denied his exemption because he had been vaccinated before his conversion.

Other employees expressed beliefs opposing the vaccine based on the use of aborted fetal cell lines in testing or development. The city rejected that reason as mere political opposition to abortion or, if the employee was a devout Catholic, a belief that differed from the pope’s.

Other employees described objections based on prayer, personal relationships with God, their understandings of Scripture, or their consciences. But the city had instructed decision-makers to deny religious exemptions if the applicants expressed only personal—versus institutional—beliefs.

Employees represented a cross section of religious faiths but had one thing in common: after being denied religious exemptions, they were eventually fired or suspended without pay when they refused to be vaccinated.

In May 2022, the city stopped reviewing appeals from another 4,600 police department employees who also objected to the vaccine, allowing those unvaccinated workers to keep working.

At the hearing Wednesday, Bursch reported that hundreds of people crowded into the courtroom and an overflow room to watch. During the next 40 minutes, a three-judge panel grappled with the effects of the mayor’s last-minute announcement on the appeal.

City attorney Susan Paulson argued that half of the case was now resolved as a result of the announcement. The alleged First Amendment harm was gone, and plaintiffs were free to reapply for their old jobs. All that remained were past employment disputes best addressed under state and city human rights laws, she contended.

Bursch argued that nothing for his clients had changed. The city had egregiously violated their rights under the First Amendment, and most of them had lost their jobs as a result.

He also charged that harm was ongoing. Many plaintiffs now had adverse references in their personnel files, making them unemployable. Their fingerprints had been flagged and sent to the FBI and the state’s criminal justice agency.

Those negative references mattered, said Bursch, referring to Natasha Solon, a former assistant principal of a New York City school. Solon applied for over 60 jobs but received few calls back. One interviewer said she couldn’t hire Solon because the city’s education department had attached an ineligibility code to her file indicating misconduct, a code generally used for crimes like child abuse, Bursch informed the judges.

Solon’s experience troubled at least one of the judges. Circuit Judge Dennis Jacobs wanted to know whether “the opportunity for the plaintiffs to get their jobs back is really phony.” He wondered whether the city had deemed refusal to get vaccinated as insubordination.

Jake Warner, an Alliance Defending Freedom attorney who also worked on the appeal, reported that Bursch left the courtroom optimistic. The judges seemed concerned by how people of faith were treated. If the 2nd Circuit does not correct the discrimination, Warner said, their next step is the U.S. Supreme Court.

“The First Amendment is clear,” Warner continued. “The government can’t force hard-working Americans to choose between earning a living and living out their faith.”