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In vaccine mandate litigation, will tide turn toward dismissed employees?

Coming soon to a federal district court in Massachusetts: dozens of suits filed by state troopers and corrections officers who lost their jobs because they failed to comply with a state vaccine mandate.

In October, Gov. Charlie Baker announced a decision to offer reinstatement to some 50 workers who had sought religious or medical exemptions from the vaccine mandate. But state troopers and corrections officers who lost their jobs were not included in that pool, and their attorneys do not expect that to change.

Critics argue that the governor is treating state troopers unfairly and differently than other employees with other types of jobs.

Meanwhile, a New York trial court judge recently ruled that New York City should give a group of sanitation workers their jobs back and grant them retroactive pay.

In Garvey, et al. v. City of New York, et al., Supreme Court Judge Ralph J. Porzio held that while the city’s health commissioner was authorized to issue temporary public health mandates, he violated the separation of powers by creating new conditions of employment for municipal employees.

“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,” Porzio wrote.

The judge also found significant an amendment that was made to a vaccine mandate for public-facing employees of private companies, which exempted performers and athletes.

“Granting exemptions for certain classes and selectively lifting of vaccination orders, while maintaining others, is simply the definition of disparate treatment,” Porzio wrote.

“Either there is a mandate for all, or there is a mandate for none,” he said, adding that if the vaccine mandate were about safety and public health, no one would be exempt.

Another front: unemployment benefits

Workers who failed to comply with vaccine mandates not only lost their jobs, they were often denied unemployment benefits.

One such employee, Diane Geryk submitted a religious exemption request form to her supervisor after Massachusetts governor Baker issued an executive order implementing a vaccine requirement for executive branch employees.

She explained on the form that she had not gotten vaccinated because of a sincere religious belief, citing a passage from the Bible.

Her exemption request was denied on the basis that the documentation she had submitted to support her religious beliefs “instead articulated a philosophical viewpoint and distrust of the vaccine.”

Soon thereafter, Geryk was asked to complete a form regarding her vaccine status. She said she did not want to quit or be terminated but nonetheless believed it would be best for her to resign.

The Executive Office of Labor and Workforce Development cited that resignation when it disqualified her from receiving unemployment benefits as having left work voluntarily. That decision was subsequently upheld on appeal.