In a recent decision, the New Jersey Appellate Division held a New Jersey city could impose a COVID-19 vaccination mandate for city employees, and that it was not required to negotiate the mandate’s imposition prior to implementation.
In the case, the court found that the city had a managerial prerogative to protect the health and safety not only of its employees, but also of city residents who have contact with city employees. The decision may provide some guidance to other public entities, such as school districts, regarding the extent to which they are required to negotiate measures to combat the COVID-19 pandemic when it impacts the workplace.
In this case, the city’s mayor issued an executive order that required its employees to provide proof of vaccination by a specified date. Employees not fully vaccinated were required to provide proof of initial vaccination, had 30 days to provide proof of full vaccination, and were required to undergo weekly testing in the interim. Though initially employees not fully vaccinated were responsible for the cost of testing, the order was later amended such that the city would pay for the cost of testing. Exceptions for medical and religious reasons were permitted under the order. The order further provided that noncompliant employees were subject to discipline, up to and including termination.
Unions representing city employees filed an unfair labor practice charge with the state Public Employment Relations Commission (PERC), seeking to stop the implementation of the vaccination mandate. These matters, all of which sought injunctive relief that would forbid the city from implementing the mandate, were then consolidated by PERC. PERC issued a preliminary injunction order and found that the city had a managerial prerogative to impose the mandate, but was required to engage in good faith negotiations on the impacts of the mandate (where the impacts were mandatory subjects of negotiations). The city and some of the unions then appealed the PERC decision to the Appellate Division and sought emergent relief.
The Appellate Division partially affirmed the PERC decision in finding that “the City has a non-negotiable managerial prerogative to immediately implement the COVID-19 vaccination mandate.” However, it reversed the PERC order insofar as the court found that the city was not required to negotiate the impact of the mandate prior to its implementation, further finding that those negotiations, if necessary, can occur afterwards. In reaching its decision, the court noted that though the city did not rely on a statute or regulation in creating the mandate, it has a “well-recognized right to hire or direct its workforce.” The court stated: “That right, coupled with the clear national and state public policy to combat the health effects posed by COVID-19, supports the City’s authority to implement a vaccination mandate.” Moreover, the unions had not shown that their rights were violated under the New Jersey Employer-Employee Relations Act (N.J.S.A. 34:13A-1, et seq.), or that there was a violation of members’ privacy.
Significantly, the court further found that though it did not interpret the employer’s right to hire and determine qualifications as allowing a public employer to impose a mandatory vaccination requirement, this right does support the imposition of such a requirement during a public health emergency. The case was then sent back to PERC for further proceedings. This case did not address under what conditions the city could have imposed the vaccine requirement absent a public health emergency, if at all.
Board members with questions are encouraged to consult with the board attorney. The decision can be found here. Questions may be directed to the NJSBA legal staff at (609) 278-5254.