The New Jersey Appellate Division issued a unanimous decision on September 27th, 2021 affirming the right of the City of Newark to adopt and enforce a policy requiring mandatory COVID-19 vaccinations without an option for testing in lieu of vaccinations. Employees who violate the policy are subject to discipline up to and including discharge. The policy also includes exemptions for medical reasons and for sincerely held religious beliefs.
The case involved a challenge to the City’s policy by the City’s police and firefighter unions and the civilian unions. PERC issued temporary restraints barring the City from implementing its policy pending negotiations over the impact of the policy. The City then filed an emergent motion with the Appellate Division seeking to dissolve the restraints imposed by PERC. In its decision, the Appellate Division concluded that Newark had a managerial prerogative to enforce its mandatory COVID vaccination policy which also would subject employees to discipline up to and including discharge. The Court further concluded that the restraints imposed by PERC impermissibly interfered with the City’s managerial prerogative to protect the health and safety of its employees and City residents, and that negotiations over any impact issues could not interfere with the City’s ability to implement and enforce its vaccination mandate.
Because the Appellate Division decision was unanimous, there is no automatic right of appeal to the New Jersey Supreme Court. The unions involved in this case are considering whether to file an emergent application with the Supreme Court to request that the court hear an appeal. The State PBA does not have a voice in that decision because it is not the negotiations representative for the police officers in Newark.