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Unvaxxed NYC school staff denied emergency free pass

Since the employees waited until the eleventh hour to fight New York City's vaccine mandate on religious grounds, a judge refused Tuesday to let them bypass a deadline to get their Covid-19 shots.

MANHATTAN (CN) — Ruling from the bench Tuesday morning, a federal judge denied a temporary restraining order to nine unvaccinated employees of New York City public schools who could be suspended or fired for refusing to get vaccinated against Covid-19.

Several challenges to the mandate are pending in multiple courts, with U.S. District Judge Mary Kay Vyskocil presiding Tuesday over one in the Southern District of New York led by Michael Kane and eight other unvaccinated employees.

Kane notes that he "follows the teachings of Buddha and Christ" but offers no letter from a clergy member certifying his need for an exemption. Such documentation is required after New York City backed down somewhat from its original mandate — "nothing in this order shall be construed to prohibit any reasonable accommodations otherwise required by law," a version updated in September states.

Given that New York City's vaccine mandate took effect Monday, Vyskocil was critical of why Kane and his fellow challengers waited so long to go to court.

“I would note too that plaintiffs’ delay in seeking relief on a mandate that was announced in late August, and where they themselves need to get relief by Sept. 27th, and yet waited until after the mandate went into effect to bring on this motion, undercuts their burden to irreparable harm,” the Trump appointee said Monday.

New York City's public school system has more than 1 million students enrolled, and 150,000 employees between teachers and support staff, making it a massive first test for such a mandate with no testing option for those unwilling to get the shot Caproni noted Tuesday that the hourlong, in-person hearing at issue was delayed by 90 minutes this morning due to Covid-related procedures in place at at the Manhattan federal courthouse.

Among religious objectors, a common refrain is the remote connection that the vaccines have to laboratory use of a fetal cell line harvested from aborted fetuses acquired in the 1970s and 1980s. But across the religious spectrum, there is near unanimity among major churches and denominations that every person eligible should immunize themselves against the novel coronavirus, which has killed more than 4.8 million people around the world as of Tuesday.

“I cannot find on the record before me that plaintiffs are likely to succeed on the merits of their claims," Vyskocil said Tuesday. "I’m not saying they won’t, I’m saying on the record before me, plaintiffs have not made an adequate showing to entitle them to a temporary restraining order.”

The ruling in many ways echoes arguments from the city opposing emergency relief.

“Plaintiffs meet none of the requirements for a preliminary injunction," Georgia Pestana, New York City’s 80th corporation counsel, said in one brief. "Namely, they cannot establish an irreparable harm, a likelihood of success on the merits of their claims or that the balance of equities tips in their favor. Most plainly too, plaintiffs cannot show that acting to enjoin a vaccination requirement for school staff would be in the public interest. ... This mandate is founded on public health officials’ expertise, sound science and studies, and, with millions now fully vaccinated, abundant empirical data proving efficacy and safety."

Sujata Sidhu Gibson, an attorney representing the nine unvaccinated public school employees, argued in court Tuesday that the religious exemption made available through union-negotiated arbitration is “unconstitutional quite blatantly.”

Judge Vyskocil probed Gibson to answer in additional briefings whether such religious exemption put in place in through collective bargaining process qualifies as “government action.”

Mayor Bill de Blasio noted at a press conference Monday that 95% of the city’s roughly 148,000 public school staffers, including 96% of teachers and 99% of principals, had received at least one vaccine dose by that morning's deadline. Underscoring the city commitment to the mandate, de Blasio said the city was prepared to bring in substitutes where needed and to put unvaccinated school employees on unpaid leave.

“Our parents need to know their kids will be safe,” the mayor said. “They entrust us with their children. That’s what this mandate is all about. Every adult in our schools is now vaccinated, and that’s going to be the rule going forward.”

Earlier Monday, as part of a march by vaccine opponents that began in Brooklyn outside Department of Education headquarters, two protesters uprooted a tent set up in Manhattan's Union Square being used as a Covid-19 mobile testing site.

De Blasio noted that vaccination rates rose in every school job category after the mandate was announced Aug. 23, with some 43,000 vaccine doses administered in the intervening weeks.

District Council 37 of the American Federation of State, County and Municipal Employees, which represents some 20,000 city Department of Education employees, said 93% of those workers had provided proof of at least one Covid-19 vaccine dose as of Sunday, up from 68% at the beginning of September.

Under a deal worked out with the city, unvaccinated District Council 37 members who want to apply for a medical or religious exemption have until 5 p.m. Tuesday to do so, union officials said in a news release.

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