New Jersey’s state-level vaccine mandates continue to hold up against legal challenges. On February 11, 2022, the Appellate Division upheld Governor Phil Murphy’s vaccination mandate that applies to all State and County Correctional Police Officers. Four days later, the Supreme Court of New Jersey denied the New Jersey State Police Benevolent Association’s (PBA) request to stay the order in New Jersey State Policemen’s Benevolent Association v. Murphy.
Facts of the Case
On January 19, 2022, Governor Murphy issued Executive Order 283, which imposes a vaccination mandate for all workers in “covered high-risk congregate settings,” including jails and prisons. The order requires covered workers – absent the approval of an application for an exemption – to obtain their “first dose of the primary series” of a COVID-19 vaccine by February 16, 2022, and to submit proof “that they are up to date with their COVID-19 vaccinations by March 30, 2022, or within 3 weeks of becoming eligible for a booster dose, whichever is later.” The order also requires “covered settings” to establish a disciplinary process for non-compliance that may include termination from employment.
Executive Order 283 also requires “covered settings” to continue mandating regular testing for workers already subject to testing under Executive Order 252 until the submission of sufficient proof of vaccination. Executive Order 283 (EO 283) does not mandate testing after proof of vaccination is submitted, but it does not foreclose it. The order states that of the many driving forces behind these requirements was the desire to raise the protective floor through vaccinations for “congregate and health care settings because of the significant risk of spread and vulnerability of the populations served.”
EO 283’s vaccination mandate prompted the New Jersey State Police Benevolent Association (PBA) and the New Jersey Superior Law Enforcement Association (SOA), on behalf of their memberships, to appeal to the Appellate Division, arguing the Governor: lacked the authority to mandate vaccinations; acted arbitrarily by failing to adequately tailor the executive order to the magnitude of the emergency; failed to comply with statutory procedural requirements; and violated the constitutional rights of its’ members.
Appellate Division’s Decision
The Appellate Division dismissed the appeal, holding that Gov. Murphy was well within his authority when issuing EO 283.
“It is beyond rational dispute that the Governor possessed the authority to issue Executive Order 283 under the Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-33 to -63 (the Disaster Control Act), which ‘vests the Governor with broad powers to provide for the health, safety and welfare of the people of the State during any emergency,’” Appellate Division Judge Clarkson S. Fisher wrote.
Judge Fisher went on to explain that the Disaster Control Act defines an emergency as including a “disaster,” which is “any unusual incident resulting from natural or unnatural causes which endangers the health, safety or resources of the residents of one or more municipalities of the State, and which is or may become too large in scope or unusual in type to be handled in its entirety by regular municipal operating services.” According to the court, “COVID-19 certainly fits the bill.”
The Appellate Division also found that the Governor was empowered by the Emergency Health Powers Act (the Emergency Health Act), which authorizes the Governor to “take all reasonable and necessary measures to prevent the transmission of infectious disease.” Additionally, it rejected arguments that Chapter 103 limited the Governor’s power to re-declare on January 11, 2022, the presence of a public health emergency under the Emergency Health Act.
The Appellate Division next turned to the argument that the present circumstances obligated the Governor to impose less onerous requirements and that the order is not tailored to the circumstances. “Urging the lesson of Kubrick’s ‘Dr. Strangelove,’ the SOA seems to believe we all need to ‘learn to stop worrying and love the virus,'” Judge Fisher wrote. He added:
In other words, this argument suggests that once disasters and emergencies are with us for more than a short while, they cease to be disasters and emergencies and simply become a way of life. We find, however, nothing in the Disaster Control Act or any of our jurisprudence that would support such an illogical or dangerous contention. Indeed, it may be far more logical to assume that the duration of the pandemic is not so much a product of the virus but a product of an unreasoned and unreasonable resistance to vaccinations of some of our fellow citizens that may be the very thing preventing our emergence from this pandemic and a return to normalcy.
After concluding that Governor was and continues to be empowered to take steps in the face of the ongoing COVID-19 emergency, the Appellate Division addressed whether the steps incorporated in EO 283 are consistent with that undertaking. “From a purely operational perspective, the lack of vaccinations has had a profound effect on the JJC’s and the DOC’s abilities to fulfill their functions,” Judge Fisher wrote. “This circumstance provided ample reason for the inclusion of appellants’ members within Executive Order 283.”
The appeals court also emphasized that prisons and places of incarceration are, by their very nature, closed facilities that inevitably foster the spread of COVID-19.
“These simple truths alone, fully supported by scientific evidence and simple logic, demonstrate that any argument that the governor issued an order with no rational connection to the disaster by imposing a vaccination mandate for appellants’ members is specious and unworthy of further discussion,” Judge Fisher said.
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For more information about the Appellate Division’s decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group at 201-896-4100.