N.J. Court: Newark May Impose Employee Vaccine Mandate Without Negotiating with Union

The appellate court reversed a Public Employment Relations Commission, which had partly restrained the implementation of the mandate.


From today's decision in City of Newark v. Newark Police Superior Officers' Ass'n (written by Judge Robert Gilson and joined by Judges Jose Fuentes and Katie Gummer):

We hold that the City has a non-negotiable managerial prerogative to immediately implement its COVID-19 vaccination mandate…. Consequently, we affirm the portion of the PERC Order that held that the City had a managerial prerogative to implement its COVID-19 vaccination mandate.

We reverse and vacate the restraints PERC placed on the City, including the requirement to negotiate the Negotiable Terms. The restraints imposed on the City under these circumstances impermissibly interferes with the City's managerial prerogative to protect the health and safety of all its employees and the City residents with whom those employees come into contact. If necessary, the City and Unions can negotiate who will pay the cost of testing without interfering with the City's prerogative, but those negotiations can take place after the mandate is implemented….

The City has not cited to any statute or regulation authorizing the City or Mayor to establish a vaccination mandate. Nevertheless, the City has a well- recognized right to hire or direct its workforce. That right, coupled with the clear national and state public policy to combat the health threats posed by COVID-19, supports the City's authority to implement a vaccination mandate….

The Unions maintain that the [New Jersey Employer-Employee Relations] Act requires the City to negotiate the vaccination mandate before it is implemented. They rely on N.J.S.A. 34:13A- 5.3, which states: "Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established." Sections 5.4(a)(1) and (5) of that Act prohibit public employers from:

"(1) [i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act…. (5) [r]efusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative." …

The Unions' arguments ignore the well-established law that negotiations of managerial prerogatives are not required if the negotiations significantly interfere with the public employer's ability to set policy…. "To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions." …

In the context of a public health emergency, negotiating procedures for the implementation of a COVID-19 vaccination mandate, or the enforcement or timing of the mandate, would interfere with the managerial prerogative…. Delaying, even on a temporary basis, the timelines for implementing the vaccination mandate undercuts the effectiveness of the mandate.

The Unions focus on the impact of the mandate to some of their members who have chosen not to be vaccinated. That focus, however, ignores the impact their "choice" has on coworkers and their families who have been vaccinated. Just as importantly, it ignores the impact on people with whom unvaccinated City employees come into contact. City police officers and firefighters go to or into homes, businesses, and public places daily where they encounter City residents. Indeed, all public employees interact with members of the public in a variety of settings and circumstances. Many of those residents are children under the age of twelve who do not have the option of getting vaccinated at the current time. Given the scientifically undisputed risk of spreading this deadly virus, the City has the right to protect the public….

There are many actions that we take as a society to protect the common good. Sometimes the protection of the many requires an individual, especially a public servant, to act for the public good. The Unions have not cited any facts that would support the purported rights of what appears to be a minority of City employees to pose a risk to coworkers and City residents. The people they are committed to serve, in particular, the aged who are among the most vulnerable to COVID-19, and children who currently cannot be protected by a vaccine, are placed at greater risk by unvaccinated City workers….

We also reject the Unions' contention that their members have a "strong interest in privacy" that is somehow being impacted by the mandate. The Executive Order requires proof of vaccination. Such proof can be submitted on a confidential basis, and there has been no showing that privacy issues will be impacted. Here again, the City and Unions can discuss those concerns, but such discussions cannot hold up the vaccination mandate.

The Unions have also cited to bills pending in the Legislature that would prohibit discrimination against individuals who have not received a COVID-19 vaccine. Those bills are not currently law; existing laws and executive orders strongly support the City's COVID-19 vaccination mandate….

Thanks to Keith Kaplan for the pointer.

NEXT: Looking Up Opposing Party's Past Cases

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  1. I supposed everyone has switched sides on the merits of public sector unions as well :)?

    1. Normally, I would agree that a union contract should not be allowed to override regulatory requirements. However, I union contracts are routinely held up above not only regulation but law and even popular referendums. I find it grating that a vaccine mandate, of all things, by executive order, not legislature, is considered more powerful.

      Mostly I worry about the clear political alignment we have seen. While it’s certain that we are seeing only part of the story, it definitely appears that some courts are acting as political arms of the Democratic party rather than neutral arbiters of law.

      1. Ben of Houston: I don’t think appearances are deceiving in this instance.

      2. . I find it grating that a vaccine mandate, of all things

        Yes, a vaccine mandate, of all things. Who would have thought that a deadly worldwide pandemic would be the place where they draw the line?

        What is it with Trumpkins?

        1. Are you still pretending that the “vaccine” gives better immunity than “the jab”?

          1. Sorry, than actually having been infected and recovering?

          2. Are you still pretending we know the answer to that?

            But more importantly, who cares? How is that relevant to the discussion? “Maybe having been infected is as good as vaccination” is just another bad faith argument against vaccination.

            1. No, it’s not a bad faith argument when it comes to people who have had COVID and have antibodies.

              1. It’s a bad faith argument because (a) it’s not being wielded in favor of an exemption from the mandates for previously infected individuals, but an argument against vaccination mandates altogether; (b) not only is it not being offered by actual experts based on a comprehensive review of the literature, but it’s not even being based on a single published study. Instead, what happened is that someone desperately googled for something, anything, to justify not getting vaccinated, and came up with this; and (c) even if true it’s not actually an argument against vaccination even for previously infected people. (The argument against vaccination would have to be either that (1) vaccination after infection does nothing to protect people; or (2) that vaccination after infection is harmful to people. But in fact the same Israeli study that they want to rely on suggests that vaccination is beneficial for people previously infected.

                And as I noted before, the Israeli study was only about Pfizer, not Moderna or any other vaccine.)

            2. So, just to recap:

              1: You were suckered by the headline to a press release that lied about the contents of a CDC study that very carefully did NOT look in to whether or not being infected with covid provides more protection from further infection by covid than does getting a vaccine

              2: We have a study on the subject, and the answer is “yes, being infected by covid provides more protection from reinfection than does a full course of the vaccine.

              3: You have yet to provide links to a single study that seriously questions the claim that being infected by covid provides more protection from reinfection than does a full course of the vaccine.

              4: So you are the one pretending that we don’t know the answer to that question (esp. since anyone who knows anything about immunology (and since you don’t, you can just take my expert work on it. After all, you “trust the experts”, right?) knows that the default assumption is that having been infected with something that doesn’t kill you provides you with better protection from reinfection than any vaccine, and most certainly than a vaccine based on a single surface protein of a virus

              5: “Who cares?” Well, gee, how about anyone who’s had the virus, and doesn’t want another day of essentially having the virus so you can get your rocks off bullying them into taking an unneeded shot.

              6: The biggest bad faith going around here is the Biden* Administration, most recently (not) seen (because the press is hiding it) releasing 12,000+ unvaccinated and un-covid tested Haitian illegal aliens into the US, while refusing to allow US Citizens and other legal visitors to enter without a negative covid test in the 3 days before entry, and demanding that US Citizens get the covid vaccine as a requirement for being allowed to work legally in the US.

              Illegal aliens getting paid under the table, however, are free to skip the jab.

              7: The second biggest bad faith is the authoritarian jock sniffers like you, who have not the slightest shred of science behind your claims, but don’t care.

              Because the issue isn’t health, the issue is asserting power over those who you don’t like.

              8: Are you “vaccinated”? Yes? Then if your biggest threat comes from one of our fellow vaccinated people breeding a vaccine resistant Covid inside himself and passing it on to you.

              9: “Worldwide deadly pandemics that justify massive emergency power” kill > 30% of the people infected. Covid is less than 2%, even with the jacked up death numbers. https://www.worldometers.info/coronavirus/country/us

              And when > 50% of the dead are 80+ years old?

              No, that doesn’t justify forcing 20 – 30 year olds to take a shot.

              Deal with your own bad faith

              1. 1) False.
                2) False.
                3) So?
                4) You are an “expert” in bullshitting on the Internet, nothing more. You’ve already proven you’re willing to fabricate legal and historical claims.
                5) It is not “essentially having the virus.” And the claim that it’s “unneeded” isn’t based on anything at all. That’s not what the Israeli not-yet-a-study says.
                6) Whatabouting.
                7) False. And retarded; Trumpkins claiming other people are authoritarian is hilarious.
                8) You’re making stuff up again.
                9) “Only millions of people have died, rather than hundreds of millions, so it’s not a big deal” is not what an intelligent person would call a good argument. Especially since it’s based on the insane “no corpse, no foul” notion that going into the ICU is nothing to be concerned about if the person eventually pulls through.

      3. I mean, just about everything is wrong with this post.

        1) Union contracts may not override regulatory requirements. (Don’t I wish!)

        2) Union contracts are not in any way held up over law.

        3) Where the Union contract is silent, a public employer may institute reasonable policies.

        4) The only part of the case that seems to me to be a stretch is that the Employer should have the right to implement _immediately_ without at least negotiating over the effects. Otherwise, it’s pretty much in line with public and private precedent.

    2. Nope.

      But I’m really amused that letting unvaccinated illegal aliens in is perfectly cool. Heck, letting illegal aliens with Covid in is perfectly cool.

      But going to work without getting the jab? THAT is verboten.

      You people really are nuts

      1. Wow, you are absolutely correct except for the fact that your ‘facts’ are not facts at all but stuff made up out of extreme right wing paranoia sources.

        1. “Felipe Romero, a spokesperson for the city of Brownsville, confirmed that the city was rapid testing each person Border Patrol dropped off at the city’s bus terminal. The 108 positive cases reported by NBC News on March 2 had climbed to 204 Tuesday, or about 12% of the total number of people tested.”

          The extreme right wing paranoia source for this is msn.com. Or NBC News. Or the city of Brownsville, Texas, depending on how deep you want to dig.

          1. Cute. Real cute. Brownsville tested about 1700 immigrants, finding ~12% of them have Covid. That’s last March. No quarantines and no vaccine requirement for immigrants.

            So Abbot’s correct in saying there are hundreds of Covid cases being sent throughout Texas, and now other states as well with the increased number of immigrants.

            1. Democrats know that their anchor baby children will vote Democrat in 18 years.

              1. Just say “I hate black people.” It would be shorter and more accurate.

                1. I don’t hate black people nor brown people. I just don’t think the races are meant to live together.

        2. Sidney r finkel
          September.27.2021 at 5:30 pm
          Flag Comment Mute User
          Wow, you are absolutely correct except for the fact that your ‘facts’ are not facts at all but stuff made up out of extreme right wing paranoia sources.

          Mr. Finkel
          Did you confirm those facts with the fact checkers or based on actual facts. Hint – Greg J’s statements are well documented.

      2. Who thinks “letting unvaccinated illegal aliens in is perfectly cool?”

        Don’t post a link to someone who just doesn’t do what you would to deal with the issue, not the same thing.

        1. Considering that we’ve had tens of thousands of people coming over the border and being held in mass detention facilities for months, and no one seems have to said “hey why don’t we set up one of those mass vaccination facilities next door so we can vaccinate these individuals” you have to conclude that either A: they are perfectly fine with them being unvaccinated, or B: everyone in government is a total idiot

          1. C: You don’t know what you’re talking about.


            I feel like I have to spend all my days debunking dumb-ass conspiracy theories. Learn to Google!

        2. The Biden* Admin thinks it’s totally cool.

          Since otherwise they wouldn’t be doing it.


          And you all must think it’s completely cool, since I don’t see any of you attacking the Biden* Admin for the tens of thousands of unvaccinated, untested illegal aliens they’re letting in to the US.

          Attack individual US Citizens for refusing to get the jab? Why, you all get wet over that.

          Attacking the Biden* Admin for letting in thousands of illegal aliens who are infected with Covid?


          Because it’s not about health, it’s about power, and how much you get off you using it against Americans you don’t like

          1. Oh you figured it out, you’re so smart Greg! We pushed the vaccines not to help save lives but because we predicted that a bunch of right-wingers would resist, and now that they have, let the fun begin! I do love using my “power” “against” them by trying to get them to get vaccinated. But please whatever you do, don’t actually get vaccinated, because then I’d have no more power over you! Oh no not that, just keep resisting please, because what I really enjoy is the trolling. Who will I troll once you’re all vaxxed up?

            1. Great snark, but snark isn’t an argument. Greg is right here, and you don’t have the stones to admit it, so you go with sarcasm.

              1. Right about what? I honestly can’t tell what point he trying to make, it’s so nonsensical. The snark is about pointing out the nonsense.

            2. Oh, Randal, you are such a pathetic ignoramus.

              The most Covid vaccine resistant in the US are those MAGA supporting blacks, who voted Democrat by, what 85%, 90% in the last election?

              If you’re going to try for snark, at least try for good snark, loser

              1. So wait… you’re saying that the people we’re giddily using our power against because we don’t like are black people?

                The inanity thickens!

                (Hint for the future: arguing against sarcasm is like pissing into the wind.)

            3. Oh you figured it out, you’re so smart Greg! We pushed the vaccines not to help save lives but because we predicted that a bunch of right-wingers would resist, and now that they have, let the fun begin!

              Don’t laugh; Breitbart published that as a serious argument the other day: liberals are tricking conservatives into dying by telling them to get vaccinated, knowing that this would cause these six-year olds to refuse to get vaccinated.

              1. DN, it’s right out of the movement conservative manual.

                When our side does something whacked to dupe our supporters, we deflect blame by saying the liberals did it.

                “Works every time,” they thought at Breitbart, “so give it another spin.”

    3. “switched sides on the merits of public sector unions”

      Why would we? Its just that all those contributions and vote efforts are not worth much.

      Newark: “Thanks union, what are you going to do, vote GOP? HA HA”

      1. Unions don’t vote.

        Union members are absolutely in the demographic that votes GOP.

        1. Not teachers and most bureaucrats. Cops and firefighters, maybe.

          1. Being a Republican seems to correlate with lack of sound education.

            Is it the superstition, the racism, the backwater influence, the misogyny, the gay-bashing, the xenophobia, the disaffectedness . . . or a confluence of inadequacy?

            1. Coming from the people who think critical race theory and gender studies constitute academic disciplines, that’s funny.

            2. What does ‘sound’ mean? It’s just another content-free prefix like ‘common-sense’ used where the left doesn’t want to be tied down to specifics.

              And education says nothing about knowledge, skills, experience or accomplishments.

  2. “Sometimes the protection of the many requires an individual, especially a public servant, to act for the public good.”

    The needs of the many outweigh the needs of the few, or the one.

    1. Like, say, those of Dreyfus.

      I’m not seeing any further process to establish a limiting principle in this decision. The kritarchs are convinced of the “fact” that unvaccinated government employees are a sufficiently deadly danger to require them, at the cost of constructive firing possibly without even unemployment benefits, to be repeatedly jabbed at unknown cost to them and with no recourse for any damage they suffer, and that will have to do.

      1. repeatedly jabbed at unknown cost to them

        See there’s your problem. You got bullshit caught in your logic loop.

        The risk case is pretty hard to deny on a collective level, but that doesn’t stop the right from denying by just waving their hands at spooky unknowns.

        Unknowns are included in risk analysis.

  3. The judges didn’t even cite any case law to justify their ruling.

    Using their same rationale (or lack thereof), Newark’s Mayor (and mayors of other cities in NJ) could mandate employees take vaccines for influenza and/or any other disease and could deny virtually all civil rights of employees by similarly claiming that doing so is necessary to protect public health.

    1. This is blatantly false. Do you not know how to read?

    2. The block quote in the original post is an excerpt from the opinion, as should be obvious from the ellipses or just not being a fucking idiot.

      If you click on the underlined words “City of Newark v. Newark Police Superior Officers’ Ass’n” in the first line of the post, you can read the entire opinion, which cites a fair amount of case law.

  4. Who knew that you can command the medical decisions of an entire state’s workforce just by saying “emergency”? That’s going to be so useful in the future. /s

    1. Well, they’ve commanded the medical decisions of the entire private-sector workspace on equally specious grounds. All this decision says is that the public sector unions get no special privileges.

      1. Not having done to you what is illegitimate when done to others is not a “special privilege”.

      2. “Specious grounds” that 800,000 people have died.

        1. Don’t rush it David. Only 700,00 in the US today.
          But don’t worry, the Biden CDC will get there

          1. Come on, Don. It was nonsense to lay the blame on Trump, and it’s nonsense to do it to Biden. Don’t be a partisan shithead.

            And what would you have the Biden CDC do? You already inveigh against every public health effort as authoritarian!

            1. The Biden CDC could be accurate with its recommendations; it could inform other state and local agencies about significant announcements such as its “no mask” announcement in March that caught all by surprise and soon had to be retracted. It could take a “science based “approach to booster recommendations. It could recognize the strong immunity given by previous infection for all who have been reported as being infected.
              I can go on.
              But I am glad that the “shithead” claim got your attention.
              The Biden leadership on this pandemic has been as bad as Trump’s.

              1. The mask PR one is true, but ultimately unimportant except for making Biden look bad.

                The rest are all incorrect.

                Although I do wonder about the reasons behind the “previously infected” policy. I suspect they figured out that allowing people to claim a previous infection would just be a giant problematic loophole, and asking people to prove it wouldn’t be effective enough to be worth much, since, if you’re stupid enough to refuse the vaccine, you’re probably stupid enough to refuse a blood draw as well. It’s very difficult to make policy around irrational people, I’d imagine.

                1. You say that they are incorrect. But I disagree with you. British and Israeli authorities came to very different conclusions.
                  The excuse you make for non-recognition is weak. Anyone who has had a positive test is registered. That in not very hard. Other countries do it. So don’t tell me that the US cannot. They just do not want to. Moreover a serology test will confirm the presence of antibodies. Not very hard. Other countries do it. The CDC’s position is NOT science based it is politics based.
                  And finally you match your ignorance with your arrogance by insulting people with whom you disagree. Yes, you are irrational and it is hard to make policy around the irrational

                  1. And I say that as a vaccine advocate with peer-reviewed publication about SARS-CoV-2

                  2. Coming to different conclusions isn’t evidence of much, other than differing priorities. Are you saying you disagree with the US priorities? Well stop the presses! Disagreeing with priorities is not the same thing as recommendations being inaccurate or not science based.

                    As far as I can tell, the CDC’s position on the previously infected is totally science based, even though it’s bad politics. The science says that getting the vaccine is well worth the risk, since it offers much better protection than previous infection alone (something like 4x less likely to get covid). The only reason not to recommend vaccines for the previously infected would be political.

                    1. Stop trying to be a smart ass.
                      I did not say that I disagree with US priorities. I said that I disagreed with there recommendation as it is not based on medical evidence.
                      CDC’s position on previous infections is just wrong as was discussed at length in the British Medical Journal with many citations. Have a complete read:
                      BMJ 2021;374:n2101 | doi: 10.1136/bmj.n2101
                      Your comments are in fact at best half-truths with regard to the COVID recovered persons. Plus their risks from vaccination are increased.
                      While I recommend vaccination to friends, I do not find the evidence nearly as clear cut as the CDC pronounces and you parrot.
                      CDC has forsaken sound science for rushed and politically motivated “recommendations” which then get pushed down as mandates on federal employees and employees of government prime contractors.
                      “The only reason not to recommend vaccines for the previously infected would be political.”
                      You could not be more wrong.

                    2. By the way if you are so smart, try explaining why previous infection does not do a good job of providing substantial immunity while a vaccine that sensitives the body to a specific region (receptor binding domain) of the spike protein does so much better. For extra credit, explain why that superior vaccine induced immunity works better with variants that mask the RBD to some degree.

                    3. I read your BMJ article and just as I suspected, you’re misrepresenting it. It’s not a scientific paper, it’s a policy analysis, and a fairly one-sided one. It’s well done, but I wouldn’t call it equitable.

                      I also read the supporting data. And also as I suspected, most of them (including all the peer-reviewed studies) either weren’t comparing the efficacy of previous infections to vaccinations, or they found that vaccinations offered better protection.

                      The CDC and I both agree with you that previous infection provides great protection. But vaccines provide better protection. So again, what’s the scientific reason _not_ to get the vaccine? It’s really hard to argue with the CDC here.

                      There are policy reasons, like vaccine scarcity, and political reasons, like throwing a bone to the anti-vaxxers, but I’m not seeing any scientific reasons. Please, let me know what I’m missing.

                      Of course, policy considerations like vaccine scarcity matter. Your BMJ article mentions scarcity a lot. So if that’s what you’re talking about, that’s where you and I agree. I think there’s room to consider previous infections in the policy. But it’s not a scientific argument, it’s just tradeoffs. That’s what I mean when I say that I think you just disagree with US priorities. You would rather the CDC prioritize vaccines for Africa, or whatever it is.

                      That leaves just the (non-peer-reviewed) Israeli data, which shows roughly equal efficacy of vaccinations and previous infection. Which, again, is not a reason by itself to recommend against vaccination. (Presumably, as the BMJ article concedes, vaccination after infection would make you even more protected for longer.) Anyway, the report itself includes lots of caveats about possible problems with the data (like biases from the fact that voluntary vaccinations lead to demographic differences in the cohorts), but I think the main one is obvious: it’s pretty old and from Israel. That doesn’t mean it’s invalid, but it’s one study of many, and more recent studies from the US are probably more relevant to US policy.

                      For example https://www.cdc.gov/mmwr/volumes/70/wr/mm7032e1.htm

          2. 700k is the official number of confirmed deaths, but the excess deaths figure is closer to 800k.

            1. Talk about bad faith arguments! You are excusing government dictates by lumping in deaths caused by government dictates with those directly caused by COVID-19.

            2. David,
              The excess deaths number is notoriously noisy. In some countries it has actually decreased during the pandemic.
              So don’t quote “made up” numbers based on guesses.

        2. How many of those were obese or over 80?

        3. I’m disappointed, David. You usually have better arguments. “800,000 people have died” is not an argument relevant to the question of constitutional authority. Either the text has meaning all of the time or we’re fooling ourselves and live under a capricious ‘rule of man’.

          1. 1) Actually, it is relevant to the question of constitutional authority. States have the authority to legislate for the public health. If that legislation violates a fundamental right, strict scrutiny could apply (though the controlling authority, Jacobsen, does not require it); strict scrutiny requires an analysis of whether there is a compelling governmental interest in the policy. And lots of deaths speak to whether there is a compelling governmental interest.

            2) I didn’t read the comment I was responding to as being about constitutional authority anyway; I read it as saying that the claim that there was an emergency was specious. And I think a large number of deaths shows otherwise.

    2. Vaccinations have never been considered a personal medical decision. We have mandatory vaccines all the time, emergency or not. The anti-vax garbage is just a self-destructive political position, not a medical one. Literally drinking the kool-aid I mean ivermectin.

      1. Late-breaking news from the NYT: livestock farmers are having trouble sourcing adequate supplies of ivermectin.

      2. ” I mean ivermectin”
        Cute but transparent bait-and -switch argument.
        “ivermectin” has nothing to do with whether a peron should or should not be vaccinated.

        1. But it does have to do with whether people _are_ getting vaccinated.

          If everyone were just following the scientific consensus, we wouldn’t need any mandates.

  5. Are there any rights that are truly unalienable these days, meaning that they cannot be relinquished if the government declares an emergency?

    1. Or even doesn’t declare an emergency, but one is perceived as such by the people.

      1. Who is this “the people” that doesn’t include so many of us?

        1. Better people. Not society’s disaffected, no-count losers.

    2. Good lord. What’s funny is that *this* is what animates the guy….Patriot Act, TSA searches, no-knock, etc., but hey, ‘you have to get a shot in the wake of a pandemic killing thousands’ it’s ‘are there any rights left?’

      1. Do you have evidence that AtR didn’t speak out against the Patriot Act, TSA, etc?

  6. “The City has not cited to any statute or regulation authorizing the City or Mayor to establish a vaccination mandate. ”

    We don’t need no stinkin laws!

    1. In issuing the Executive Order, the Mayor relied on the public health emergency created by COVID-19 and his authority to supervise all City departments and City employees. See N.J.S.A. 40:69A-40. The Mayor, as the chief executive officer of the City, has the authority to establish policies governing City employees. See N.J.S.A. 40A:61-4(a)

      You don’t even read the cases before your hot takes, do you?

      1. Bob is accurately quoting the decision, but misrepresenting it. The quote is in there, but what it means is that there is no specific statute saying, “The mayor can order city workers to be vaccinated.” The order relies on the mayor’s general power over city workers rather than on a specific grant of vaccination power.

  7. Managerial perogative, which is the souce cited in the opinion does not need to be enumerated. And let’s salute a ruling that codifies managerial perogative; not all working conditions are or should be subject to negotiation.

    1. And where are the contents of this “source” enumerated?

      1. Did you read the opinion?

  8. “salute a ruling that codifies managerial perogative;”
    Try that if you are a private employer. All you have is “at will employment.”

    1. I am not sure that I understand your point. The concept of at will employment does indeed allow employers to order employees to get vaccinated.

      1. Should an employer be allowed to order employees not to visit an abortion clinic or enter into a homosexual relationship? If not, why not?

        1. “Should an employer be allowed to order employees not to visit an abortion clinic or enter into a homosexual relationship? If not, why not?”

          Irrelevant. Neither getting/not getting an abortion nor being in a homosexual relationship affects the health of your fellow employees or customers. It’s more akin to a no-smoking rule.

          1. I would rather have a coworker who is unvaccinated than a liberal woman who thinks it’s acceptable to kill her babies. If she thinks murder is okay, how am I to not know she won’t steal my stuff or try to kill me?

        2. Such orders would be forbidden by various employment laws. If there were no such laws, then an employer would be able to condition employment on those sorts of requirements.

          (If you’re asking in the abstract, my answer, as a libertarian, is: yes, an employer should be allowed to do so. But in general it would be a stupid idea for an employer to do so.)

      2. That was my point. But you do not have arbitrary prerogative with respect to work conditions. You have to negotiate any change in those with the union

  9. “Managerial perogative” do you include sex with the mayor in the non-enumerated prerogatives?

  10. “We also reject the Unions’ contention that their members have a “strong interest in privacy” that is somehow being impacted by the mandate. The Executive Order requires proof of vaccination. Such proof can be submitted on a confidential basis, and there has been no showing that privacy issues will be impacted.”

    It might be good public policy to override privacy constraints, but to allege that “confidentiality” eliminates privacy impacts is breathtaking in its determined stupidity.

    1. Gandydancer : “It might be good public policy to override privacy constraints, but to allege that “confidentiality” eliminates privacy impacts is breathtaking in its determined stupidity”

      Really? As the umpteenth “reason” for vaccination snowflake panic, that seems pretty darn lame. My employer handles any number of confidential details about me. Giving them a scan of my vaccination card didn’t seem to up the ante in any appreciable degree.

      But if your ideological handlers insist you exist in a constant tizzy of anti-vaxx hysteria, maybe it’s different…..

      1. The first ten words of mine that you quoted might give you a clue that my “ideological handlers” are solely a product of your dementia, but that would require that the Wizard had given you a brain to begin with.

        Your lack of concern for your privacy does not eliminate the fact or the impact of the invasion of it on others.

        But good to learn that Mr. Determinedly Stupid has another instance. It’s quite like that fight scene in The Matrix.

        1. So… what’s the impact? You still haven’t said.

    2. What is the privacy impact? This reveals nothing personal about an individual. Indeed, it reveals something that most adults are eager to talk about.

  11. We’ll see how that works out for Newark. For an example from a few hours up I-95, “dozens of Massachusetts state police are resigning” rather than comply with a gubernatorial order to be vaccinated or lose their jobs.

    1. How many “dozens”? I understand there are 2000+- troopers.

      This seems more ominous:

      “BREAKING: New York Governor Kathy Hochul says she will deploy medically trained National Guard troops to replace unvaccinated healthcare workers in hospitals, who will be fired tonight.”

      1. “In interviews, doctors and nurses in New York City said that some holdouts were getting vaccinated as the deadline neared. At St. Barnabas Hospital in the Bronx, the percentage of employees with at least one dose jumped from 88 percent on Friday to 94 percent by late Monday morning, the hospital’s chief medical officer, Eric Appelbaum, said in an interview. He noted that many of the holdouts had gotten vaccinated at pharmacies over the weekend. “I did not think it would be this good,” he said, adding that he had worried the vaccination rate would stall before reaching 90 percent.”

        We’ll probably get equally welcome news from the Massachusetts State Police. The “dozens” of a union press release will probably shrink to a much smaller number in the actual event.

        So be of good cheer, Bob!

        1. Many of the ones that are resigning are actually just transferring to different police departments that don’t require it. They’re not actually sacrificing those pensions for the principle of being allowed to kill other people.

          1. David Nieporent
            September.27.2021 at 7:35 pm
            Flag Comment Mute User
            Many of the ones that are resigning are actually just transferring to different police departments that don’t require it. They’re not actually sacrificing those pensions for the principle of being allowed to kill other people.

            Your comment is absurb – along with lacking an understanding the risk of transmission.

          2. “for the principle of being allowed to kill other people.”
            Cool down. That inflammatory rhetoric is crazy.
            Their principal means of killing people is with the gun that they open carry.

            1. Their principal means of killing people is with the gun that they open carry.

              I did realize that irony as I was posting the comment, yes. They already have the privilege of killing people; QI FTW!

          3. “Kill other people”. How utterly dramatic and silly.

            What happened to you, man? You really are a shell of what you once were.

    2. Did a quick Google search and yanked this nugget from the ether :

      “In Massachusetts, three doses of hepatitis B vaccine are required for all children attending licensed childcare or preschool, and kindergarten through grade 12. Three doses of hepatitis B vaccine are also required for full-time college and graduate students, as well as health science students attending college”

      I don’t doubt I could find a dozen similar examples if I tried. Of course life was so much simpler before today’s Right decided to remake itself as the pro-Covid party.

      1. The right are today’s pro freedom party, in comparison to the fascist left wing democrats. Those inculcated into the prog left fantasy cannot see it though.

        1. Uh huh. If someone had just thought to tell all those preschoolers and graduate students they were being oppressed, you could have gotten a jump-start on your bright shinny new agitprop toy :

          Pro-covid Anti-vaxx Hysteria….

          1. There were plenty of anti-vax parents who wouldn’t allow their kids to get vaccinated before all of this, and there were accommodations made for those parents.

            So don’t act like everyone just followed along without question. It’s dishonest, and you know it.

            1. Did those kids get to go to school?

        2. Two sentences! Go, Buckie, go!

          1. Are you serious? (That’s a rhetorical question, we know you are only serious about trolling. If you had an actual response to the original comment’s criticism, you would have responded with something not so vapid. Ergo you have no substantive response to it.)

            You comment about someone writing two sentences… by posting a sentence fragment and a three-word sentence? Jesus wept.

            1. Here’s the problem, Michael P: Only a troll would find buckleup’s excretion worth a “substantive response”. So where does that leave you?

      2. Those mandated vaccines have proven to much more effective than the covid vaccine.

        I personally know 25+ individuals that have caught covid after being vaccinated. See also the Israeli study.

        1. It’s almost like we’re dealing with, what might you call it, a ‘novel’ virus.

          Actually, I’m more surprised you know 25+ people.

          A anti-vax internet site, maybe?

          1. 9 months after the introduction of the vaccines which are shown to be 70% effective after 6 months and declining after that point.

        2. I personally know 25+ individuals that have caught covid after being vaccinated.

          No, you don’t. But from the sound of it, you probably know Dr. Ed.

          1. David,
            Why doubt a number that may not be quite correct, but is in fact credible since 20% of ll new cases are in people who have been vaccinated.
            Your comment sounds like arguing for arguments sake. Which would be fine if we were all sitting around with a drink in our hands,

    3. Turns out we didn’t need to defend the police, they would do it themselves!

      I kid, but I consider myself fairly pro-police in general (limited by the fact that I, as you all, frequent a libertarian magazine) but I would assume public duty also includes not giving your fellow citizens covid, right?

      1. *defund. Though Google correcting “defund” to “defend” is really funny from a #censorship of conservatives point of view it kills the joke

        1. We need an edit function.

          Also, I only realized this very second that AutoCorrect is also the “fascist left wing democrats” oppressing “today’s pro freedom party”. Hell, this is as dire a threat as vaccinating against disease (exclamation point, exclamation point, exclamation point)

          Will the Horror never end…….

  12. No one should be surprised by this decision in the Progressive People’s Republic of Nut Jobs New Jersey. This comports perfectly with their ideology. These actions are being taken to address an ’emergency’ that is over 18 months old now. This is a complete perversion of that process. These ’emergency’ actions have never been passed into law by our elected representatives, the People’s Duma. They are based on executive orders, with arbitrary and capricious reasoning.

    If you think it will simply stop here with a vaccine mandate, you are very much mistaken. The nature of progressivism is to destroy one’s autonomy and freedom. Today it is a vaccine mandate. I assure you, in the future it will be much more.

    Whatever happened to: My body, my choice?

    1. Whatever happened to: My body, my choice?

      They have a choice. Nobody is holding them down and forcibly injecting them.

      Why do you think the state legislature is required to pass a law for a city to impose a job requirement on its workers?

      1. David, for a step this big – compelled violation of bodily autonomy – Yes, I absolutely expect the Legislature to directly debate, discuss and address the issue. This governance by executive edict is wrong. It leads to a very, very bad place.

        There are job requirements, and then there are things like compelled violation of bodily autonomy. They are not the same, David.

        1. This governance by executive edict is wrong. It leads to a very, very bad place.

          It’s not “governance,” though; we’re not talking about the city ordering all its residents to get vaccinated. That I agree would require authorizing legislation. We’re talking about the city acting as employer, not as government.

          Government as employers do not have unlimited power, but they have much more power than they do as to the general public.

          1. “Government as employers do not have unlimited power, but they have much more power than they do as to the general public.”

            Understood. But I must say, this goes far beyond what I would have expected, given our experience a century ago.

    2. Commenter_XY: “If you think it will simply stop here with a vaccine mandate, you are very much mistaken. The nature of progressivism is to destroy one’s autonomy and freedom”

      As if “Progressive People’s Republic of Nut Jobs” didn’t already have a score or two of vaccine mandates already in force for multiple decade past. As if every. single. damn. state doesn’t already have scores of preexisting vaccine mandates.

      As if our drama queen himself, Commenter_XY, wasn’t the happy beneficiary of vaccine mandates throughout his entire life (wherever he lives). But – hey – when you belong to the Right (today’s Pro-Covid Party) there is no step taken against your favorite disease that mustn’t be met with hostility and hysteria.

      XY follows the instructions of his handlers, who see great political gain in this denialist populism & have dedicated consistent & detailed messaging to it. They told their followers to ignore covid, to sneer at its effects, to mistrust health statistics, to see conspiracy everywhere, to fight every precaution, to hate public health experts and believe flimsy & unsupported counterfactuals. This anti-vaccine business is only the latest example of their pro-covid policy.

      1. Yeah grb, I actually actually want the NJ Legislature (The People’s Duma) to openly debate, discuss and directly address an issue of importance to the electorate. How terrible. I guess that makes me some wild-eyed radical. 🙂

        What is being done in the name of ’emergency’ powers by executive order is not right. We are well past the point of ’emergency’.

        The problem for you will be when the shoe is on the other foot.

        1. Sorry guy, but I’m a bit past ignoring the pattern here. Of course it wasn’t always thus: When the Biden Administration proposed offering people vaccines in their homes I admit being surprised at the Right’s coordinated faux-rage in response. I just wasn’t jaded enuff to see the big picture then. Now I know any anti-Covid action will get immediate push-back from your handlers. You’ll then fall dutifully in line.

          With Biden’s mandate proposals it was federalism; with this proposal we learn an employer can’t set terms of employment. With the next anti-Covid measure it’ll be something else. I know you’ll always be up to the task.

          I admit some things about the Right’s pro-Covid policy baffle me even now. When future historians write about the first time a political party dedicated itself to supporting a disease, I expect even they will be mystified why the Right demanded its supporters hate – seething hate – medical experts like Fauci. Historical distance will probably do no good. I expect they’ll find it as bizarre & perverse as I do.

          1. When the Biden Administration proposed offering people vaccines in their homes I admit being surprised at the Right’s coordinated faux-rage in response.

            That wasn’t even what Biden proposed, though the reaction made it sound as if he was sending people door-to-door with needles. The proposal was simply to have a door-to-door informational campaign. And they still freaked out about it.

            1. David,
              Excellent clarification as it showed that grb was peddling a line of BS.
              As for freaking out about an informational campaign, that was stupid.

          2. “the Right’s pro-Covid policy”
            I guess that line corresponds to the pro-death policy of the choice advocates.

    3. New Jersey has a Sikh attorney general. That says all you need to know about the people’s commitment to American principles.

      1. I could care less about Grewal’s heritage; he is still a nut job (to me). There are plenty of ‘WASP’ nut jobs out there. Besides, Grewal is no longer NJ AG. In perfect accordance with the Peter Principle, he was promoted has moved on to bigger and better things at the Federal level (God help us). Another nut job, Bruck (oh, how I could have fun with that name – but I won’t), was named as AG by the People’s Commissar (Phailing Phil Murphy) in late July.

        1. Grewal’s commitment to unlimited immigration is something you only see from non-WASPs.

          1. In my town, here in the People’s Paradise, there are plenty of WASP and non-WASP uberlibs who favor unrestricted immigration. It is their uberlib ideology that binds them, not race or ethnicity.

      2. What a compelling argument… for morons

      1. Good to be back, Don Nico….I think (heh, heh).

  13. I’m a Union attorney who has been fighting these issues in both the public and private sphere (whatever my personal beliefs), and I can tell you that this decision is in line with the precedent in at least any state that I know of.

    The upshot is that, in issues where the Collective Bargaining Agreement is silent, the Employer has the right to implement reasonable rules and policies. In the private sector, where the policy affects the terms and conditions of employment, the Union may demand that the Employer meet and bargain over the policy, but if the parties reach impasse, the Employer may implement its final proposal.

    In the private sector, the CBA often includes a “management rights” clause, which allows the Employer to implement reasonable policies without bargaining at all, though they at least have to meet with the Union over the effects of the policy. But this is how we get to the public sector. The State, as Employer, is assumed to have “inherent managerial rights,” (or as here, a “managerial prerogative”) to direct its workforce. As such, when it comes to issues central to the Employer’s purpose, the State may behave the same way a private employer with a management rights clause does and institute a reasonable policy without bargaining, or merely bargaining over the effects.

    (Is a vaccine mandate “reasonable?” I don’t know of any cases where they haven’t been, and have personally been on the losing side of the argument.)

    1. Thanks for the informed comment.

  14. Two anecdotes from the last few days. My neighbors’ daughter lives in France, and was suddenly hospitalized with a blood clot in her brain for the better part of a month. Her panel of French doctors said it was “most likely” due to the vaccine which she had recently taken. Fortunately looks like she is recovering now.

    Now, my chiropractor says the same thing has happened to his mom who is older and may die.

    Upon Googling this issue, it seems to be a real thing, and MSNBC says that COVID itself poses a risk of blood clots, too, and the danger of blood clots from COVID is greater than the danger of blood clots from the vaccines. I assume that’s true. But the existence of potentially deadly side effects surely must be relevant to the “reasonableness” or other legality of forcing people to be vaccinated (or lose their jobs or what have you). Maybe the risk of COVID is greater (or maybe not if you’re younger and healthy) but I’ve not heard of anyone imposing a requirement to be infected with COVID.

  15. I think all vaccines have potentially fatal side effects, like allergic reactions. That gets factored in to the policy recommendations.

    But no safety standard is 100% effective. Sometimes, people’s apartment building in Florida passes inspection but then collapses. That doesn’t mean my employer needs do accommodate my batophobia by relocating my office to a tent in the local park.

    1. No, but in FL it might mean that they do not do a good job of inspecting buildings.

    2. Vaccines also have real and serious side effects besides allergic reactions that can be long lasting.
      That is why taking a vaccine is a medical decision which should be an informed decision made with the advice of one’s physician.

      1. That is exactly what I did = …taking a vaccine is a medical decision which should be an informed decision made with the advice of one’s physician. I will also say that seeing a family member die from Covid-19, and then not even being able to say Kaddish, or hold/attend a funeral were strong motivators.

        Don Nico…My young twenty-something children who do not have any comorbidities and are in great health have elected not to vaccinate. They understand the data, and the risks. I am not thrilled about it, but our children live the lives they choose, not the lives we parents would choose for them….

        1. Then your children are unbelievably selfish. A common trait in this generation unfortunately, as I understand it. No civic duty whatsoever.

          1. Randall, you are unbelievably arrogant.
            While I may disagree with the choice made by C_XY kids,
            I don’t demean them as persons.
            Go play with the rest of the sheep.

            For all interested in the issues of natural immunity vs. immunity via vaccination see:
            “Equivalency of Protection from Natural Immunity in COVID-19 Recovered Versus Fully Vaccinated Persons: A Systematic Review and Pooled Analysis”
            doi: https://doi.org/10.1101/2021.09.12.21263461

            1. It’s long past time to start calling people out for stupidly prolonging this pandemic.

              It was a mistake for Biden to pitch the vaccines initially as a way for people to protect themselves. I get the appeal of such messaging… Americans are notoriously selfish, so appealing to their sense of selfishness is always a tempting way to go. But, positioning a vaccine that way makes it sound like a personal choice, which it isn’t.

              Vaccines are and always have been about protecting societies, not individuals. They protect societies by stopping the spread. Ideally, they stop the spread entirely, eradicating the disease. But society is pretty well protected as long as the spread is slowed enough to be dying out exponentially rather than spreading exponentially.

              Once we get to that point, we won’t need mandates… or lockdowns or anything else. The fact that we’re still dealing with the pandemic at all is entirely the fault of holdouts like XY’s kids.

              When the society you live in decides it’s time to vaccinate, you better fucking do it unless you have a really good reason not to. It’s not an individual-by-individual risk analysis.

              Once we reach the tipping point and covid starts to recede, then sure, vaccinate or not, nobody will care. I don’t care one iota whether XY’s kids get sick and die from their bad decision. Or I should say, I don’t care one iota more than I would care if they died from not wearing their seatbelts. Sad, but entirely on them. If they kill someone else by driving drunk, for example, then they’re murderers, just like they are by failing to get vaccinated.

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