Request for exemption from the New York City Department of Education's COVID-19 vaccination requirement denied

The New York City Reasonable Accommodation Appeals Panel [Panel] denied an Educator's request for a religious exemption from the COVID-19 vaccination requirement for employees of the New York City Department of Education [DOE]. Supreme Court dismissed Educator's CPLR Article 78 petition appealing the Panel's decision, which ruling was unanimously affirmed by the Appellate Division, without costs.

The Appellate Division opined that the denial of Educator's request for a religious exemption and reasonable accommodations for her job as a school teacher was not arbitrary and capricious, noting DOE's argument that "allowing [Educator] to teach remotely while the DOE was resuming in-person instruction, would impose an undue hardship on the [DOE]".

The DOE's "Position Statement" explained that accommodating Educator would result in her being unable to perform her essential functions as a schoolteacher and given that more than 3,300 DOE employees had requested religious exemptions, "granting an exemption to the employees would impose on the DOE significant costs and operational difficulties associated with creating alternative assignments for the exempted employees, and retaining and hiring additional staff to perform the exempted employees' essential job functions". This, said the Appellate Division, "was a rational basis for the denial of [Educator's] request."

Addressing a procedural matter, the Appellate Division observing the fact DOE's Position Statement was "unsigned and undated hearsay", said "[h]earsay evidence can be the basis for an administrative determination", citing Matter of Gray v Adduci, 73 NY2d 741, and "this Court need not limit our review to the language in the Citywide Panel's decision, as the Panel noted that it had reviewed the DOE's determination as well as the documentation submitted to the agency, and that it based its decision on that review."

Click HERE to access the Appellate Division's decision posted on the Internet.

N.B. A decision by the United States Circuit Court of Appeals, Second Circuit, Candice D'Cunha v Northwell Health Systems, [23-476-cv], addresses alleged violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act of 1990 (“ADA”) when Northwell refused to accommodate D'Cunha's requests for a COVID-19 vaccine exemption and terminated her employment. Click HERE to access the D'Cunha decision posted on the Internet.

 

 

Civil Rights Law §50-a as amended by Chapter 96, Laws of 2020 held to apply to law enforcement officer personnel records retroactively

As is relevant here, former Civil Rights Law §50-a provided, with limited exceptions, that "[a]ll personnel records [of law enforcement officers] used to evaluate performance toward continued employment or promotion ... shall be considered confidential and not subject to inspection or review" (see Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556).

The legislature repealed Civil Rights Law §50-a [see Chapter 96, Laws of 2020] and made several related amendments to the State's Freedom of Information Law [FOIL], providing that such changes "shall take effect immediately".

In the words of the Appellate Division, "repeal of Civil Rights Law §50-a ... reflected a strong legislative policy promoting transparency of police disciplinary records and eliminated any claim of confidentiality in them" (see People v Castellanos, 72 Misc 3d 371)).

The Appellate Division then held that "the repeal of Civil Rights Law §50-a applies retroactively to records created prior to June 12, 2020", citing Schenectady Police Benevolent Assn. v City of Schenectady, 2020 WL 7978093; 2020 NY Slip Op 34346[U].

In the words of the Appellate Division, while "the legislature made no express statement in the repeal itself, or in the limited legislative history concerning the same, as to whether the repeal was to be applied retroactively [the amendments] "went into effect immediately and, by its plain reading and intent, applies to records then existing and not simply to records created at a time subsequent to the enactment of the legislation."

Citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, the court said "While the characterization of a statute as remedial is not dispositive, as a general matter, "remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose".

Click HERE to access the decision of the Appellate Division posted on the Internet.

 

Regulating the risks of artificial intelligence

CNN reports the White House rolled out a sweeping executive order on October 30, 2032 "that aims to monitor and regulate the risks of artificial intelligence while also harnessing its potential."

Click HERE to access the CNN article posted on the Internet.

Attendance and Leave Policy Bulletins posted on Internet on October 30, 2023 by the New York State Department of Civil Service

The New York State Department of Civil Service has published the following Attendance and Leave Policy Bulletins:

• Policy Bulletin 2023-04, Rights of Employees to Express Breast Milk in the Workplace
• Policy Bulletin 2023-05, Implementation of the Productivity Enhancement Program for 2024

If you wish to print these bulletins a version in PDF format is posted at:

https://www.cs.ny.gov/attendance_leave/PB2023-04.pdf

https://www.cs.ny.gov/attendance_leave/PEP2024Combined.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

OATH Administrative Law Judge recommended the appointing authority terminate an employee found guilty of assaulting a co-worker

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Julia H. Lee recommended the termination of the employment of an administrative manager [Respondent] the ALJ found guilty of disciplinary charges that alleged Respondent had assaulted a co-worker [Co-worker] by striking him on the head with a metal pipe.

Co-worker did not testify at the trial* but the Appointing Authority [Employer] presented the testimony of six employees who "heard a commotion and arrived on scene" and witnessed the interaction between Respondent and Co-worker.

The failure of Co-worker to testify triggered the Respondent's asking the ALJ to apply the sanction of "adverse inference"** based on Employer’s failure to call Co-worker as a witness. 

Judge Lee opined that "An adverse/negative inference based on a missing witness may be appropriate where the moving party has laid a foundation that the witness has knowledge about a material issue, that he would naturally be expected to give testimony favorable to the party who failed to call him, and that the witness is available to that party," citing Comm’n on Human Rights ex rel. Brehshiek Marquez v. Fresh & Co., OATH Index No. 434/22 at 24-25.

Considering the particular facts of this case and the ALJ's credibility determinations with respect to the testimony of the Respondent and the testimony of the Employer’s witnesses, Judge Lee:

[1] Declined to draw an adverse inference as the result of Co-worker’s refusal to testify at the disciplinary hearing or the Employer’s failure to call Co-worker as a witness, noting "The factfinder’s drawing of an adverse inference is permissive, not required", citing People v. Gonzalez, 68 N.Y.2d at 431, and LLC v. Ward, 276 A.D.2d 277, 278; and 

[2] Did not credit the Respondent’s testimony that Co-worker had struck her first.

Judge Lee, duly noting Respondent's employment by the agency for 36 years, concluded that the gravity of the "violent conduct" of Respondent which resulted in the instant disciplinary action, and that Respondent had been involved in "four prior incidents of disruptive behavior", warranted termination and recommended that the penalty of dismissal be imposed on Respondent by the Employer.

 * The disciplinary hearing was conducted via WebEx videoconference.

 ** The "adverse inference" sanction is based on the theory that if a litigant fails to present certain known evidence or testimony, such evidence or testimony would not be helpful, or might even be harmful, to the litigant. In Varriale v City of New York, 148 AD3d 650, the Appellate Division opined the failure of a defendant in an administrative disciplinary procedure to testify concerning an event permits a disciplinary hearing officer to draw the strongest inference against the defendant permitted by the record.

Click HERE to access Judge Lee's findings and recommendation posted on the Internet.

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A Reasonable Disciplinary Penalty Under the Circumstances. NYPPL's public personnel law handbook focusing on determining an appropriate disciplinary penalty to be imposed on an officer or an employee in the public service of the State of New York and its political subdivisions in instances where the individual has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click HERE.