Mandate – Page 3

NY Mandate Case: Supreme Court

NY Mandate Case: Supreme Court

Re: the Legality of Mandating Vaccines to City Employees

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Facts of the Case

Dates: 2021-Oct 2022
Location: New York City
Court: Supreme Court of NY
Case #: 85163/2022
Plaintiff: NY Sanitation Workers
Plaintiff’s Lawyer: Chad LaVeglia

Defendant: City of NY, DOHMH, Dept of Sanitation & NY Mayor Adams
Trial Type: Supreme Court of NY
Judge: Ralph J. Porzio
Status: Decided (Oct 24 2022)
Verdict: for the Plaintiff

*updated Oct 27, 2022

Background

One year ago in October 2021, New York City enacted a Covid vaccine mandate which required all city staff to show proof that they obtained at least one jab. Employees who did not comply by Oct. 29 were subject to termination. [1]

Despite the fact that they continued to work full-time for nearly four months after the mandate began, the unvaccinated plaintiffs were fired in February 2022 after they received “generalized and vague denials” of their shot exemptions. [1]

Mayor Eric Adams expanded the mandate to private sector employees in December 2021 [1] and then backtracked on March 24, 2022, Mayor Adams enacted Executive Order No. 62, which provided blanket exemptions from the private employers’ vaccine mandate for athletes, performers, and other artists [2]

Nearly 1,500 New York City workers including police officers lost their jobs due to the city’s discriminatory jab mandate. Hundreds of others left their places of employment after being forced to choose between their job and their autonomy. [1]

As a result, thousands of New Yorkers protested the state’s medical coercion of state workers, health-care workers, and teachers. They also expressed frustration with the city’s attempt to force businesses to require verified “vaccine passports” in exchange for goods and services when there was no proof that the shot prevented virus spread, something the court acknowledged in its ruling. [1]

According to the court filing, the Department of Sanitation employees were terminated in February 2022 for “failure to comply with vaccination requirements” after the health commissioner of the City of New York, David Chokshi, issued a vaccination mandate requiring all city employees to show “proof of at least one dose of vaccination against COVID-19” by Oct. 29. [2]

Significance

This case has the potential to undo every vaccine mandate across the USA and to expose the faulty science behind covid injections.

Plaintiff’s Argument

“The petitioner’s central argument is that Mayor Adam’s Executive Order #62, the private exemption order, rendered the public employee vaccination mandate arbitrary and capricious or unconstitutional. Furthermore, the Petitioners all claim, and provided lab documentation, that they have natural immunity to Covid19 from prior infection(s).” [4]

Defendant’s Argument

“The Respondent’s central argument is that the private employers’ exemption order and the public employee vaccination mandates were “created separately and exist independently of each other.” [4]

Relevant Prior Judgements/ Cases

…More information is needed…

Decision

The sixteen New York City Department of Sanitation workers were reinstated to full employment and will receive more than eight months of back pay after the New York Supreme Court ruled that they were wrongfully terminated under the city’s “arbitrary and capricious” Covid jab mandate. [1]

Porzio’s ruling states that the Oct. 20, 2021, and Dec. 13, 2021, rulings from the commissioner of health and mental hygiene ordering that all employees get vaccinated are “arbitrary and capricious,” ordering that the petitioners be reinstated to their full employment status, and entitled to back pay in salary from date of termination. [2]

Judge Ralph J. Porzio wrote in his ruling that the vaccination mandate for city employees was “not just about safety and public health; it was about compliance.” [2]

“that if the vaccine mandate was about “safety and public health, unvaccinated workers would have been placed on leave the moment the order was issued.” [2]

“If it was about safety and public health, the Health Commissioner would have issued city-wide mandates for vaccination for all residents,” he continued. “In a City with a nearly 80% vaccination rate, we shouldn’t be penalizing the people who showed up to work, at great risk to themselves and their families, while we were locked down.” [2]

“There is nothing in the record to support the rationality of keeping a vaccination mandate for public employees, while vacating the mandate for private sector employees or creating a carveout for certain professions like athletes, artists, and performers,” the court wrote. “This is clearly an arbitrary and capricious action because we are dealing with identical unvaccinated people being treated differently by the same administrative agency.” [1]

The court also acknowledged that because the plaintiffs had natural immunity against Covid thanks to prior infections, and determined that because the city’s Board of Health “does not have the authority to unilaterally and indefinitely change the terms of employment for any agency,” the sanitation workers were wrongfully terminated. [1]

“This Court does not have a basis to disagree with temporary vaccination orders during a public health emergency, however, ordering and enforcing that vaccination policy on only a portion of the populace for an indefinite period of time, is akin to legislating,” the court wrote, noting that “states of emergency are meant to be temporary.” [1]

“Being vaccinated does not prevent an individual from contracting or transmitting Covid-19,” the court acknowledged. “The petitioners should not have been terminated for choosing not to protect themselves. We have learned through the course of this pandemic that the vaccine against Covid-19 is not absolute.” [1]

The court found that “being vaccinated does not prevent an individual from contracting or transmitting COVID-19,” adding that vaccinated and unvaccinated individuals have the same quarantine and isolation guidelines issued by the Centers for Disease Control and Prevention. [3]

“It is time for New York to do what is right and what is just,” Porzio concluded. [3]

Aftermath

Response from the Plaintiffs

“Yesterday marked a historic victory for sanitation workers, all the brave NYC employees who serve the public and our representative democracy,” attorney Chad LaVeglia told The Daily Signal. “The court struck down NYC’s draconian, arbitrary, vaccine mandate on multiple constitutional and legal grounds. The thousands of city employees who were ignored now have a voice. And as the court recognized, they deserve better.” [2]

“The court also recognized a commonsense principle that has somehow eluded politicians like Eric Adams: Forcing one—and only one—segment of the population to get vaccinated during a worldwide outbreak is unconstitutional and arbitrary,” he added. “Sixteen sanitation workers fought back against tyranny. And won. This is a historic victory for individual rights, and the system of government mandated by the Constitution.” [2]

“It’s null and void, essentially,” LaVeglia said in a video on the NYCforYourself Twitter account. “We just defeated the vaccine mandate for every single city employee.” [3]

Such employees included workers from the Department of Education, New York Police Department, New York Fire Department, and the Department of Corrections — among other city staff in various departments. [3]

“For all the brave men and women who have been our first responders and have been brave through all this are now free, and you should be able to go back to work,” he added. [3]

Response from the Defendant

“The city strongly disagrees with this ruling as the mandate is firmly grounded in law and is critical to New Yorkers’ public health,” a New York Law Department spokesman said on Tuesday. “We have already filed an appeal. In the meantime, the mandate remains in place as this ruling pertains solely to the individual petitioners in this case. We continue to review the court’s decision, which conflicts with numerous other rulings already upholding the mandate.” [2]

Response from FDNY-Firefighters

FDNY-Firefighters Association President Andrew Ansbro and FDNY-Fire Officers Association President Lt. James McCarthy told Fox News that the groups support revoking the vaccine mandate implemented by city officials earlier this year. [3]

FDNY Association officials blasted Mayor Adams earlier this year for exempting athletes and performers from the mandate, adding it should have been extended to all New Yorkers. [3]

“We support the revocation of the mandate for the athletes and performers that work in New York City,” McCarthy said. “We think that the people that work for New York City should also have the mandate relocated for them.” [3]

Ansbro said if Adams removed the vaccine mandate for certain people, “you need to remove it for everybody in the city.” [3]

“If you’re gonna follow the science, science is gonna tell you there isn’t any danger right now and putting hundreds of firefighters, police officers, and other emergency workers out of work is not in the best interest of the city. It’s not safe,” Ansbro said. [3]

Further Research

Court Documents:

Read the Court Ruling

In the news:

Media

NY Supreme Court Judge Demolishes Vax Mandate -Oct 26 2022

source: Odysee/ RPLR

CDC Director Must Apologize For Misinformation -Oct 26 2022

source: Rumble/Sunfellow On COVID-19

EPM Rob Roos: Pfizer Admits Vaccines Not Tested For Prevention -Oct 20 2022

source: Rumble/Sunfellow On COVID-19

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Pilot Mandate Case

Pilot Mandate Case

Re: the Legality for KLM (Dutch Royal Airlines) to mandate Corona injections against the will & consent of its employees

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Facts of the Case

Dates: April 26, 2022 (filed)
Location: Amsterdam, The Netherlands
Court: Amsterdam Civil Court
Case #: 9827224 KK EXPL 22-246
Plaintiff: VNV (Dutch Pilot’s Union)
Plaintiff’s Lawyer: A. Stege

Defendant: KLM Airlines
Defendant’s Lawyers: J.M. van Slooten & T.O. Boot
Trial Type: Expedited
Judge:
Status: Ongoing
Verdict: for the Plaintiff (June 2, 2022)

*updated June 5, 2022

Background

The core of the dispute is whether KLM is allowed to ask new pilots whether they have been vaccinated against corona and, if their answer is negative or non-existent, to exclude the new pilot from the recruitment procedure. [1]

On 10 March 2022, a candidate pilot sent an e-mail to VNV (the Pilot Union) with the title ‘vaccination requirement for future KLM pilots’. In this email, the candidate pilot informed VNV that KLM is asking about the vaccination status of the candidates, and that the candidate pilot feels forced to get the vaccinations to secure himself a job, which he is very upset about and causes him mental complaints. [1]

Subsequent correspondence between the parties shows, among other things, that KLM takes the position that the agreements made between VNV and KLM only apply to KLM employees and not to prospective employees, and that KLM (even before corona) set as an assumption requirement that an applicant for the position of pilot must be employable at all destinations of the KLM network. Furthermore, KLM did not comply with VNV’s request to confirm that it would refrain from inquiring into the corona vaccination status of candidate pilots. [1]

VNV is a trade union that promotes the interests of pilots employed by KLM. It also promotes the interests of members who are candidates for employment with, for instance, KLM. [1]

KLM currently employs more than 3,000 pilots. These can be divided into the categories of captain, first officer and second officer. There are also differences within these positions, namely which pilot may fly which type of aircraft (e.g. Boeing 737 or Airbus A330). Retraining to another aircraft type generally takes 3 months. [1]

During the corona pandemic KLM did not take on new pilots for some time. Now there are about 50 vacancies again and KLM has started to approach future pilots again. The Flight Crew Recruitment Coordinator with focus on Flight Operations, Ms. [name 9] , is responsible for the recruitment of cockpit personnel together with the Pilot Recruitment Manager. She stated the following about the “let’s connect” interviews with these potential pilots: [1]

These conversations were intended, after the influx of new pilots had stopped for a long time, to reconnect with the waiting list candidates and inform them of the fact that KLM expects the influx of new pilots again. Matters such as notice period, validity of licences/medical examinations, availability, what a candidate had done during the Corona period etc. were discussed. It was also discussed that one should be able to fly the entire network of KLM. In most of the interviews, the candidates immediately indicated themselves that they were fully vaccinated. In one interview, the question was actually asked whether a candidate was fully vaccinated. No candidate indicated that they were not fully vaccinated or unwilling to do so. There were no candidates who did not want to answer the question asked. [1]
In the event that a candidate had indicated that he or she was not fully vaccinated or prepared to be vaccinated, or did not want to answer the question whether the candidate had been fully vaccinated, this would have been a reason not to offer the candidate concerned an appointment as a pilot with KLM because the candidate would not be able to fly to every destination. This is in accordance with KLM’s always applicable policy. In such a case, we do not record anything about this and the candidate is simply removed from the waiting list. However, this has not been an issue. [1]
Nothing is recorded and/or registered regarding the vaccination status of candidates. [1]

During the corona pandemic the number of pilots with a travel restriction has so far increased by 30% to 800. A travel restriction means that a pilot is not allowed to fly to a destination or, for example, not at night. The (medical) travel restrictions are administered through the company doctor, KLM Health Services (KHS). [1]

Pilots who cannot fly to a destination where corona restrictions apply because they have not been vaccinated or do not (wish to) undergo testing may apply for such a travel restriction through KHS. KLM then only sees during the planning that there is a restriction and not whether the pilot has been vaccinated or not. [1]

KLM does not require its current pilots to have a corona vaccination. [1]

KLM Vademecum Vliegend Personeel (Guide to Flight Personnel) policy on vaccinations:

Crew are vaccinated against yellow fever, typhoid fever, diphtheria, tetanus & poliomyelitis (DTP) and hepatitis A at KLM Health Services free of charge. It is not allowed to fly within 24 hours after a vaccination. For cockpit crew there is the possibility to get the vaccinations on the day of the medical examination. There are countries that make certain vaccinations mandatory. Crew must carry the vaccination booklet with them every flight. [1]

A protocol to the collective bargaining agreement contains agreements on coronary restrictions:

f. KLM and the VNV will closely monitor developments regarding corona, corona testing and the corona vaccine. Both testing and vaccination will be on a voluntary basis only. If this is to the detriment of the total deployability of the KLM flying corps and/or the ability to carry out the KLM network, KLM and the VNV will consult each other. [1]

Message from the Global Aviation Advocacy Coalition

This is an international alliance of thousands of pilots, including the Dutch Aviation Collective supported by 17,000 doctors and medical scientists. [2]

The coalition warns that the side effects of corona vaccinations lead to dangerous situations. The Dutch Aviation Collective with 1400 members has also joined the action. Chairman and experienced pilot Mark Juch: [2]

“A number of colleagues have reported to us with vaccine damage, such as heart problems. When something like that happens in flight, it’s very dangerous. It’s just a matter of time before it goes wrong”. [2]

Coalition participants regularly receive reports of pilots suffering vaccine damage, including heart problems, blood clots, and neurological and hearing disorders, they say in their statement. Pilots working for KLM have also reported vaccine damage. According to the cry for help, affected pilots are not supported or taken seriously. They often lose their medical certification, which means they can no longer fly. The unions do not stand up for these pilots enough or simply do not know, as many incidents are deliberately kept quiet. [2]

Our Flight Safety Manual states that you may not use medical drugs or undergo medical procedures whose effects on your functioning during your work are uncertain,” says pilot Mark Juch. [2]
“That certainly applies to the corona vaccines, which have a temporary approval and are actually still in the experimental phase. The motto in aviation has always been: safety above all else. We have very strict medical examinations. If there is something wrong with you, you are grounded. But now all of a sudden that doesn’t apply anymore?” [2]

Significance

This case challenged the notion whether or not a company may force a novel medical procedure onto its employees or risk termination.

Plaintiff’s Argument

VNV claimed by way of a judgment, as far as possible provisionally enforceable:

prohibit KLM with immediate effect from inquiring in any way into and/or using information from candidate pilots about their anti-corona vaccination status and/or from rejecting candidates because they have indicated that they are not vaccinated and/or do not wish to take the vaccination; [1]
To order KLM to pay a penalty of €100,000 for each violation of this prohibition; [1]
To order KLM to unconditionally reinstate the applications of those candidates they have rejected because they have not confirmed to be vaccinated against corona within 2 days after service of this judgment and to inform them within that term, and to disregard the vaccination status completely in the further application process; [1]
To order KLM to pay a penalty of €100,000 for each violation of this order; [1]
To order KLM to pay the costs of the proceedings. [1]

Defendant’s Argument

KLM argues that it is entitled to ask whether pilots can be deployed to all destinations. … if it does not do so, its business operations will be in serious trouble. KLM cannot afford to hire candidates who have limited employability due to the lack of corona vaccination. [1]
Furthermore, asking about deployability is not a violation of the fundamental rights of candidate pilots since there is no question of any kind of vaccination compulsion. As an employer, KLM is entitled to impose employability requirements in its hiring policy in order to assess whether a candidate is suitable. The candidate is free to decide whether to agree to those requirements. A candidate pilot can simply take up employment with another airline, even if the candidate has undergone training at the KFA. KLM respects that pilots who were already employed before Covid are questioning this new vaccine but that should not apply to new pilots. [1]
Moreover, according to KLM there is no unequal treatment of candidate pilots and pilots. All candidate pilots are treated equally and candidate pilots are not equal to pilots that are already employed by KLM. [1]

Relevant Prior Judgements/ Cases

…More information is needed…

Proceedings:

In a summons dated 26 April 2022, VNV demanded a provision. This summons was not issued because KLM indicated that it would appear voluntarily, which it did. [1]

The oral hearing took place on 19 May 2022. Appearing for VNV were [name 1] , [name 2] , [name 3] and [name 4] , accompanied by the authorized representative. For KLM, [name 5] , [name 6] , [name 7] and [name 8] , also accompanied by the agents, appeared. KLM and VNV brought (further) documents into the proceedings beforehand. At the hearing the parties explained their positions and answered questions from the Subdistrict Court. [1]

After further debate, judgment was requested and a date for judgment was set. [1]

Decision

The Subdistrict Court:

Prohibits KLM with immediate effect from inquiring into and/or using information of candidates for vacancies for the position of airline pilot about their COVID-19 vaccination status and/or from rejecting candidates because they indicate that they have not been vaccinated and/or do not wish to take the vaccination, on pain of a penalty payment of €100,000 per violation; [1]

The Court’s Reasoning:

KLM argued that it only asks whether the pilots are fully deployable, of which, according to KLM, a vaccination against corona is a part. Quite apart from the fact that KLM asks directly about vaccination status, by asking about full deployability KLM is in fact also asking about vaccination status. By terminating the job application with immediate effect if the answer to the question of whether the candidate pilot has been vaccinated or wishes to be vaccinated is not forthcoming or is negative, KLM may be putting candidate pilots under pressure to (still) vaccinate. After all, without vaccination there is no job at KLM, for which the candidate pilots have all been trained. [1]

It is ruled that asking for and demanding a corona vaccination constitutes an unjustified infringement of the fundamental rights of the candidate pilots, in particular it violates the privacy of Article 8 of the ECHR. To this end, the following is considered. [1]
By requiring vaccination against corona, KLM infringes the privacy (Article 8 ECHR) of the candidate pilots. After all, the decision whether or not to be vaccinated is something that belongs pre-eminently to this private sphere. Requiring candidate pilots to have been vaccinated and to answer the question about vaccination status in the affirmative therefore constitutes a breach of this privacy. KLM thus leaves candidate pilots who wish to take up employment with KLM no choice in the matter. [1]
Such a breach may be justified under certain circumstances. … “In answering the question of whether such an infringement is justified, it must be examined whether the infringing act serves a legitimate purpose and whether it is an appropriate means of achieving that purpose (the necessity criterion); furthermore, it must be examined whether the infringement of the employee’s privacy is proportionate to the employer’s interest in achieving the intended purpose (the proportionality criterion), and whether the employer could reasonably achieve that purpose in a less intrusive manner (the subsidiarity criterion).” (ECLI:NL:HR:2007:BA5802, [party] ) [1]
In brief, the purpose that KLM wishes to achieve by requiring candidate pilots to undergo a corona vaccination is that KLM, with due observance of the CAO agreements and taking into account the travel restrictions of the pilots already in service, can continue to manage the planning of the pilots. For the time being, the Subdistrict Court is of the opinion that this could be regarded as a legitimate objective. That objective could possibly also be achieved with the measure applied by KLM, namely by requiring the future pilots to be vaccinated. However, this measure does not prevent the prospective pilots from being subject to a travel restriction at some point after entering service. This may be for an entirely different (medical) reason or because the corona measures change, but also a pilot’s view of corona vaccinations may change after they enter service and the pilot may still forgo new necessary vaccinations against corona. Even if the remedy is suitable to achieve KLM’s intended purpose, which has in no way become plausible in this dispute, in the preliminary opinion it has not become sufficiently plausible that the remedy is proportionate, nor has it become plausible that the subsidiarity requirement has been met. To this end, the following is considered. [1]
It is evident that the interests of the candidate pilots in the present case are substantial, since they involve a violation of their personal privacy. KLM’s interest in arranging its schedule in accordance with the collective labour agreement and in organising its business operations in the best possible way is also present, but does not carry as much weight as these rights of the candidate pilots. This is all the more true since VNV has argued that there are alternatives to which the candidate pilots and many of the pilots already employed by KLM are willing to participate, such as (PCR) tests, which would also achieve the objective of effective planning. VNV also adequately explained during the hearing that the way in which KLM has currently defined the travel restrictions for existing pilots can also be improved considerably in consultation with VNV, which would make it possible to solve the identified planning problem. In view of the foregoing KLM has insufficiently substantiated that, if it takes on a few candidate pilots who have not been vaccinated, it will encounter such problems in a staff of over 3,000 pilots that it will no longer be able to complete the planning. In addition, as already considered above, the vaccination requirement does not mean that candidate pilots will not still be subject to a travel restriction because of corona in the future, both because the pilots may change their minds after they enter service or there may be reasons not to take possible future vaccinations after all, and because future measures are uncertain. [1]
The foregoing leads to the conclusion that for the time being it has become insufficiently plausible for the Court to rule on the merits that the measure taken by KLM is proportionate and that the purpose intended by KLM cannot be achieved in another manner. KLM therefore unjustly infringed upon the rights of the candidate pilots. This means that VNV’s claim to – in brief – prohibit KLM from asking candidate pilots about their vaccination status is allowable, as well as the penalty payment claimed in that respect. [1]
In view of the foregoing, VNV’s other claims regarding the AVG and the WMK need not be discussed. [1]
The claim to order KLM to still approach the rejected candidates will be dismissed. KLM has argued that it did not reject any candidate because he did not have or did not want to take the corona vaccinations, which VNV has not disputed (stating reasons). Accordingly, VNV has no interest in this part of its claims. [1]
KLM should be ordered to pay the costs of the proceedings as the party largely found against. [1]