Claiming that the effect of the de Blasio administration’s vaccine mandate is to penalize its members who have been inoculated against the coronavirus as well as those who haven’t, the Correction Officers’ Benevolent Association Dec. 8 filed a lawsuit in Manhattan Supreme Court seeking a permanent injunction against it being enforced.
Two days later, Justice Shlomo S. Hagler denied a union request for a temporary injunction. Arguments on the permanent injunction will be held next month.
A major point in the legal brief is that while the Department of Correction has used a staff shortage caused by the hundreds of COs who have refused to be vaccinated and been placed on leave without pay to justify the imposition of steady 12-hour tours for the rest of the union’s membership, that shortage was largely the result of the city’s having hired just 150 Correction Officers—all of whom are currently training in the Correction Academy—in the past three years.
Not Replacing the Departed
Since April 2020, when the pandemic began affecting operations and COs were routinely required to work double and even triple tours, the suit stated, more than 1,600 of them resigned their jobs or retired. This has had a dual effect: “It is beyond doubt that this inhuman work practice has led to numerous COBA [members] being sick due to exhaustion and fatigue,” while also leaving them more susceptible to the virus.
Union President Benny Boscio said in a statement that accompanied the court papers that “the Mayor’s negligence in not hiring Correction Officers” had occurred “even as the inmate population skyrocketed and violence continued to soar.”
He said that requiring officers to work five consecutive 12-hour tours each week amounted to “treating us like slave labor and it will only result in Officers getting sick or injured by assaultive inmates.”
A Law Department spokesman responded to the suit with this statement: “The City is grateful for every officer who has gotten vaccinated. We’re confident the mandate and the 12-hour shifts will be upheld by the court.”
Why COs Got Extra Time
The attorney who filed the complaint, John W. Burns, noted that it was the staff shortage even before vaccine holdouts were placed on unpaid leave Dec. 1 that led the administration to impose the mandate a month later than for other uniformed employees.
Nine percent of the union’s members are still working pending decisions on their applications for exemptions from the mandate for either medical or religious reasons, and five percent have been on leave without pay since the beginning of the month. While Mayor de Blasio Dec. 6 said that 83 percent of the DOC’s uniformed staff had gotten at least a first dose of the vaccine, a COBA spokesman two days later said that must have included officers in higher ranks: among COs, 80 percent were inoculated.
The suit asserted that the Mayor “was and remains determined to push blanket vaccine mandates regardless of the actual circumstances and regardless of the fact that less-onerous policies may work, and in fact have proven to work, and will not cause additional work and stress on Correction Officers.”
That referred to a previous policy that gave all city employees the option of being tested weekly for the virus instead of vaccination.
‘Will Exacerbate Crisis’
Noting that “assaults on staff continue to surge, resulting in Officers being injured and unable to work for extended periods of time,” the complaint added, “The Vaccine Mandate, knocking hundreds, possibly over a thousand, Correction Officers out of work indisputably exacerbates the staffing crisis. Now is not the time to implement the Vaccine Mandate and unnecessarily risk health and safety of all present on Rikers Island even further than the ongoing staffing crisis already does.”
Stating that the problem was likely to be compounded by the retirement, resignation or firing of many of those currently on leave without pay who still refuse to be vaccinated, the suit said the extended shifts for the 85 percent of COs who have been vaccinated meant the city was also “punishing them with major disruptions to their personal life and work/life balances.”
It continued, “The Mayor and DOC have demonstrated deliberate indifference to the health, welfare and safety of the DOC staff and the inmates they are responsible for with the implementation of this Draconian Vaccine Mandate.”
Near its conclusion, the suit stated, “There is no rational basis to believe that the existing Vax or Test policy is not sufficient with respect to correction officers to reasonably protect public safety.”