A state appellate panel last week affirmed Governor Murphy’s authority to issue vaccine mandates for the state’s corrections officers. The case, NJ State PBA v. Murphy involved a challenge brought by unions representing corrections officers, to Executive Order 283, issued on January 19, 2022, which imposes a vaccination mandate for all workers in “covered high-risk congregate settings,” which includes correctional facilities.
The primary argument made by the unions challenging the Executive Order is that the Governor, by virtue of the recently enacted law P.L. 2021, c.103, was limited in his authority to issue a subsequent public health declaration and impose restrictions and mandates under either the Disaster Control Act or the Emergency Health Act. The appellate panel, was unpersuaded by the unions’ arguments. Finding that nothing within the P.L. 2021, c. 103 or elsewhere would preclude the Governor from acting under the authority provide in the two Acts.
The appellate panel also addressed the unions’ alternative argument that even if the Governor had the authority to act, the present circumstances of the Covid-19 pandemic obligated him to impose less onerous requirements and that the Executive Order is not tailored to the circumstances as the unions see them. The logic behind the unions’ argument being that Covid-19 is moving beyond a pandemic and becoming more of an endemic and something that we all will be living with as normalcy. The appellate panel described this argument by invoking the lesson of film director Stanley Kubrick’s Dr. Strangelove, in which it is urged that we all need to “learn to stop worrying and love the virus.”
Once again the appellate panel was unpersuaded by this argument. Finding that as a matter of fact, that Covid-19 and the different variants are increasing more contagious, thereby no doubt constituting an emergency, but also as a matter of law that the Disaster Control Act would not preclude the Governor’s actions even if it were true that Covid-19 was now more endemic. Finding further that the vaccination requirements implemented under Executive Order 283 were a rational exercise of the Governor’s authority.
The appellate panel further addressed the argument of the unions that even if Executive Order 283 was authorized and was a rational response, there were other reasons to preclude enforcement. The unions argued that the Order infringes on their substantive due process rights, violates collective negotiation rights, impairs contractual rights, conflicts with civil service regulations, and violates the Administrative Procedures Act (APA) requirements. These appellate panel found that these arguments, like the other arguments made by the unions, were without merit.
Shortly after the Appellate Panel issued its decision the unions appealed the decision to the New Jersey State Supreme Court, which in turn denied the union’s petition.
Contact: Frank Marshall, Esq., Associate General Counsel, FMarshall@njlm.org or 609-695-3481 x 137.