‘Arbitrary and capricious’
The union has filed a lawsuit with the Supreme Court of the State of New York in Manhattan “challenging the legality of the COVID-19 vaccination policy as CUNY has applied it,” wrote PSC President James Davis in a June 3 email to PSC members. The union’s suit argues that “CUNY’s partial vaccine policy [is] arbitrary and capricious” under the state law used to challenge decisions of state and local agencies in the courts.
The union supports a vaccine policy, Davis said, but CUNY’s policy only covers PSC-represented employees and those under the executive compensation plan. More than 10,000 other CUNY workers are not required to vaccinate. A vaccine policy that covers some job titles and not others is not only unfair but defies a public health approach to limiting the spread of COVID-19, said the union.
A CUNY Board of Trustees resolution in late January recognized the massive risk to public health that COVID-19 poses and the need for vaccination, but, Davis said, CUNY’s actions falls short.
“[I]f CUNY management had taken their own statements seriously, they would have implemented a universal mandate for all employees, not carved out one quarter of their workforce. There is no public health rationale for CUNY’s incoherent approach,” Davis said in the message to members, adding that “the policy jeopardizes the livelihood of some employees who refuse vaccination while placing others beyond reproach for the same actions.”
He continued, “The custodian, cafeteria staffer, college assistant, electrician, or accountant who declines to get vaccinated, for example, risks no adverse employment actions, while PSC-represented employees who do not qualify for a medical or religious exemption but decline to get vaccinated face potential discipline under our contract, up to and including CUNY seeking their termination. The PSC strongly supports a vaccine mandate but cannot tolerate such a blatant double standard. Our members should not be subject to discipline for noncompliance while others who occupy the same offices, corridors and places of assembly suffer no penalty whatsoever for the very same action.” The union is seeking to negotiate a prohibition against terminations through impact bargaining.
PSC is optimistic that the legal action, combined with public pressure and the union’s continued efforts at the bargaining table, will lead CUNY to implement a fair and consistent policy.
“We continue to support a vaccine mandate for all CUNY employees, with medical and religious exemptions, as a public health necessity,” Davis said. “But no employee should lose their job for failing to comply; there are other measures CUNY can take.”