NY Appellate Division Upholds FDNY Vaccine Mandate

The Appellate Division of the New York Supreme Court has upheld a decision by the New York City Board of Collective Bargaining concluding that the COVID-19 vaccine mandate for members of the Uniformed Firefighters Association of Greater New York, IAFF Local 94, was not grievable as it related to the placement of non-compliant members on leave without pay. Local 94 sought to grieve the city’s implementation of the vaccine mandate.

The Board of Collective Bargaining ruled that while some aspects of the city’s vaccine mandate is arbitrable, the decision to place non-compliant members on leave without pay is not. IAFF 94 challenged that decision in the New York County Supreme Court arguing that the BCB decision was arbitrary, capricious and contrary to law. Following a decision in favor of the city, Local 94 sought review at the Appellate Division.

In upholding the Board of Collective Bargaining and the trial court, the Appellate Division concluded as follows:

• Under the two-pronged test to determine whether a dispute is arbitrable pursuant to Court of Appeals precedent, the BCB must first determine whether the parties may arbitrate the dispute by inquiring if “there is any statutory, constitutional or public policy prohibition against arbitration of the grievance”.
• If there is a prohibition, the inquiry ends and an arbitrator cannot act.
• If no prohibition exists, as was the case here, the BCB then examines the parties’ collective bargaining agreement (CBA) to determine whether the parties in fact agreed to arbitrate the particular dispute.
• The Board rationally found, under the second prong, that there was no “reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA”.
• We reject petitioner’s argument that its members who failed to comply with the citywide vaccine mandate were deprived of rights under the regulations of respondent the Fire Department of the City of New York (FDNY).
• The cited regulation… simply requires employees who want permission to go on special leaves of absence to apply in writing and explain the reasons for their request.
• It does not prohibit the FDNY from imposing leave in other circumstances, such as where these members fail to satisfy a condition of employment, nor does it address the FDNY’s ability to do so.
• We also reject petitioner’s assertion that its unvaccinated members were deprived of their rights to salary and related remuneration under the CBA because they were placed on LWOP.
• These members’ failure to satisfy a condition of employment necessarily renders them unqualified for their position.
• Therefore, it was not irrational for the Board to find that petitioner identified no right “to the continuation of contractual pay and benefits under these circumstances.”
• On appeal, petitioner identifies no CBA provision that would allow its members to continue being paid for services not rendered upon their failure to satisfy a condition of employment.
• We have considered petitioner’s remaining contentions and find them unavailing.

Here is a copy of the decision: