The Commissioner of the New York City Department of Health and Mental Hygiene issued an order [Vaccine Mandate] requiring, among others, employees of the New York City Department of Education [DOE] to be vaccinated against COVID-19 and provide proof of such vaccination.
Following arbitration between the DOE and the United Federation of Teachers [UFT], the union representing a majority of teachers in New York City public schools, an arbitrator issued an award [the Impact Award]which established a process for the implementation of the vaccine mandate. The Impact Award provided, among other things, that:
1. "Any unvaccinated employee who has not requested an exemption . . . , or who has requested an exemption which has been denied, may be placed by the DOE on leave without pay";
2. That "[Employees] who become vaccinated while on such leave without pay and provide appropriate documentation . . . prior to November 30, 2021, shall have a right of return to the same school,"; and
3. That beginning December 1, 2021, the DOE "shall seek to unilaterally separate such employees who remained on leave without pay".
On October 2, 2021, Petitioner was placed on leave without pay by DOE after failing to submit proof of vaccination by the deadline. Petitioner then commenced the instant proceeding pursuant to CPLR Article 75 to vacate the Impact Award and pursuant to CPLR Article 78, to review the DOE's determination dated October 2, 2021, placing Petitioner "on leave without pay, alleging, inter alia, that the DOE violated Education Law §§3020 and 3020-a by doing so without providing Petitioner hearings under those statutes".
DOE cross-moved to dismiss the Plaintiff's petition. Supreme Court, among other things, granted the DOE's cross-motion, denied Plaintiff's petition, and, in effect, dismissed the proceeding. The Petitioner appealed the Supreme Court's ruling.
The Appellate Division, noting that Petitioner was not a party to the arbitration between the DOE and the UFT, concluded that Petitioner "does not have standing to seek review of the Impact Award". The Appellate Division then explained, "... contrary to the [Petitioner's] contention, she was not entitled to the hearing procedures outlined in Education Law §§3020 and 3020-a before being placed on leave without pay for failure to comply with the vaccine mandate because the mandate is a condition of employment".
Accordingly, the Appellate Division held that "Supreme Court properly granted the [DOE's] cross-motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, denied the petition, and, in effect, dismissed the proceeding.
Click HERE to access the Appellate Division's decision posted on the Internet.