After Year of Hardships, Some Fired Unvaccinated City Workers Win Jobs Back
In a growing number of lawsuits, municipal workers who were put on unpaid leave or terminated after seeking religious exemptions to an employee COVID shot mandate are getting judges to order their reinstatement.
To support his family after losing his city government job in December 2021 for declining to get a COVID-19 vaccine, Frank Schimenti reluctantly sold the van that he had bought five years earlier to transport his son, Giovanni.
The teenager, who had multiple disabilities, was in and out of the hospital throughout 2020 — during the height of the COVID-19 pandemic in New York City — and passed away that December at the age of 17 from issues unrelated to the virus.
Schimenti, an assistant chief plan examiner and project advocate for the city’s Department of Buildings, worked for the agency for 22 years, including remotely from home for 18 months during the pandemic — the same stretch when Giovanni spent months at a time at a local Staten Island hospital.
A year after Giovanni’s death, in December 2021, the Department of Buildings put Schimenti on unpaid leave. He was terminated two months later.
Schimenti had requested and been denied a religious exemption to the city government’s requirement that all employees get vaccinated against COVID, with two shots of Pfizer or Moderna, or the equivalent.
Since former Mayor Bill de Blasio first instituted the mandate in October 2021, over 12,000 workers have sought religious or medical exemptions. At least 1,771 former municipal workers have been terminated after failing to comply with the mandate — many of them after the city denied their accommodation requests. Mayor Eric Adams has perpetuated the policy and his administration is continuing to fight city employees in court.
Schimenti’s van wasn’t the only sacrifice he made for that cause. While the family hadn’t lived extravagantly even before he was terminated, Schimenti said he began questioning whether some of their ordinary habits were too costly.
“You know, pizza nights are extravagance. Pizza night. So, I was like, ‘Maybe we have to cut out pizza night,’” said Schimenti, 53. “But I really couldn’t do that, because since my son was ill, and after he passed, Friday night became like, our time, our family time — kind of like something that we wanted to continue.”
“So I said, ‘How can we cut out pizza?’ And it was really that, you know, like, maybe we’re gonna have to cut out pizza night. And, you know — that’s horrible,” he added. “I can’t even describe what I went through, and my family.”
But last month, he got a bit of hopeful news: a Richmond County Supreme Court judge ordered the city to reinstate Schimenti to his job with back pay.
Paying the Toll
He is not alone. In a growing number of cases, judges — and not just on Staten Island — are ruling that the city improperly fired employees and ordering they be brought back on the payroll.
Since September, more than a dozen city workers already terminated or facing termination for not complying with the mandate have won orders for their reinstatement. State Supreme Court judges found that the city failed to adequately justify its denial of requests for religious accommodations.
The accommodations could be as simple as undergoing weekly testing — which for a while city agencies did accept as an alternative to vaccination — and wearing masks.
Some of those workers said they’ve been caught in the middle of a wave of skepticism over the sincerity of their religious beliefs — and paid a heavy toll for standing firm. The city law department has appealed every lost case — including, most recently, Schimenti’s.
Just four attorneys, collaborating with each other, have filed close to 200 suits in the five boroughs, the vast majority of which are still pending. Unlike many past cases that failed to persuade the courts, these focus on allegations that city agencies did not give religious accommodation requests a fair hearing.
“They’re consistently losing now. The tide is definitely turning,” said Staten Island attorney Christina Martinez, one of the group of four. “Strategically, bringing many lawsuits for individuals as opposed to a class action is another reason why we’re winning — because they can’t keep up with all the individual lawsuits.”
A spokesperson for the city Law Department said the agency disagreed with the rulings lost, but noted that other cases challenging the mandate have gone in the city’s favor.
Other Mandates Dropped
COVID vaccines have been pivotal in preventing deaths and serious illness, with one study suggesting that the number of lives saved from the vaccines in NYC alone approached 50,000 as of March 2022.
Early hopes that vaccines could also fully prevent virus transmission dissolved in the wake of so-called breakthrough cases, in which people who have been vaccinated test positive for COVID-19. Meanwhile, the federal Centers for Disease Control and Prevention has increasingly acknowledged the protections offered by past COVID infection, as it continues to tout the benefits of vaccination.
While New York City initially mandated vaccination starting in late 2021 for employees in both the public and private sectors, and also for indoor dining and entertainment venues, only the city employee mandate continues to be enforced.
Schimenti’s request for a religious accommodation was based on his opposition to the use of fetal cells in the development of the three vaccines that were available in late 2021 — a common objection among the lawsuits filed in state court.
Although the vaccines don’t contain substances that stem from abortions, the testing or manufacturing of the vaccines involves fetal cell lines derived from abortions that took place decades ago. The same is true of common household medicines like Tylenol.
While a number of workers say they came around to their objections to vaccines only later in life, Schimenti and his wife had been homeschooling their youngest daughter — who was born in 2010 and has special needs — because they hadn’t complied with public school vaccination requirements for children.
Making Ends Meet
When his checks stopped coming, Schimenti was the sole breadwinner for his wife, daughter and a 25-year-old son who has special needs. The couple also have an adult daughter who no longer lives at home.
To make ends meet, Schimenti said, he borrowed money, moved balances around, sought paid gigs as a musical performer — including as an Elvis impersonator — and otherwise tried to buy time.
To have any chance to keep their jobs, unvaccinated city workers had to submit applications to their agency’s Equal Employment Office explaining why they should be exempt from the mandate. Any denials would have to be appealed to a newly formed citywide panel composed of law department attorneys and other personnel. (Many Department of Education workers were also offered an option to appeal to an arbitration panel.)
Of the applications for accommodations through Aug. 30, more than 9,000 were denied, or roughly 75%, according to numbers provided by City Hall. Just over 2,400 had been approved, and about 600 were still pending.
As of Nov. 8, 1,771 city workers had been terminated for noncompliance with the mandate, according to City Hall spokesperson Jonah Allon — who defended the accommodation review process.
“Each agency and the citywide appeals panel carefully and rigorously reviews every reasonable accommodation request, and makes its determination based on a careful consideration of the facts before them,” he said on Friday.
But the legal victories point to administrative errors that the plaintiffs allege permeated the religious accommodation process. Those include failures by the city to properly communicate why requests or appeals were denied, to provide sufficient proof that exemptions would create an undue burden for some agencies, and to abide by a city human rights law that requires “cooperative dialogue” with applicants, a review of court records shows.
‘From Essential to Expendable’
In New York City, skepticism about the legitimacy of religious accommodations — particularly given the alignment between those who oppose the mandate and the political right — originated at the top levels of city government.
After more than 6,000 members out of roughly 36,000 uniformed employees of the NYPD filed for exemptions late in 2021, de Blasio suggested that many of the requests would be denied.
“Clearly most people who put in the request don’t meet the criteria,” de Blasio told WNYC radio on Nov. 12, 2021. “The health care exemption is very specific criteria. The religious exemption, [you] clearly have to have a really clearly defined belief structure that, you know, has a lot of history to it — and not something that just popped into your mind recently.”
Diane Pagen, a public school social worker in Brooklyn who was put on unpaid leave in October 2021 and terminated in February 2022 for not complying with the vaccine mandate, said people like herself who opposed the mandate were criticized and labeled as selfish even before the mandates were in place.
Her own reasons stem from her personal faith, Pagen said, although she did not apply for a religious exemption.
“Even as early as July 2021, we were being defamed. You turn on the radio in the morning and you’d have to hear people making assumptions about you over what you decided not to do,” said Pagen.
“I never had a choice,” added Pagen, who during nearly a year of not working managed by going on food stamps, borrowing nearly $18,000 from her retirement account, and riding a bicycle to save on transportation costs. “I suppose people with very flexible morality can make a choice like that, but I don’t make those kinds of choices.”
Still, some requests weren’t as strong as others.
In some cases, questions by city agencies and the citywide appeals panel about the sincerity of submissions for religious accommodations were sparked by the evidence provided — including by similarly worded explanations across applications that were supposed to be personal in nature, court papers show.
City attorneys also raised questions in some cases about the submission of form letters offered online to anyone who requested them by a number of religious groups, such as the Evangelistic Ministries of Anita Martir Rivera.
And in at least two cases, a judge has been persuaded by the Department of Education’s argument that allowing teachers with religious exemptions to work remotely would cause an undue hardship on the agency, because schools would still need an in-person teacher as well — effectively doubling staffing needs.
But those who were willing to lose their jobs in order to stand by their beliefs say their sincerity also has been questioned. They have been marginalized by the city they dedicated their careers to and forced to pay a heavy price, they say.
Fired, Then Reinstated
Firefighter Sophy Medina for years was the poster child, literally, for a department that had struggled for decades to recruit a significant number of women.
A former marine, Medina met her husband, firefighter Thomas Olsen, on the job, and the couple had two young kids to support when they were both put on unpaid leave in late 2021 for noncompliance with the vaccine mandate.
#FDNY #Firefighter Sophy Medina “When girls see me at work, I hope they in turn see themselves working hard to overcome any obstacles & I want them to know that I’m rooting for them” #IWD2020 #WomensHistoryMonth2020 #FDNYWomen #WomenInFIREandEMS #WomenWhoFightFire #ifshecanseeit pic.twitter.com/71WVTOEZW7— FDNY Women (@FDNYWomen) March 7, 2020
The children were seated on their dad’s lap while Medina testified against the mandate at a City Council hearing in September 2021.
“We both worked throughout the worst of the pandemic,” Medina testified that day. “We went from essential to expendable, and no one seems to care — which is ironic if you remember the banging of the pots and pans at 7:00 p.m. every night.”
Medina, who didn’t respond to requests from THE CITY for an interview, went on to detail the hardships her family endured after losing both breadwinners’ paychecks because they wouldn’t compromise on their beliefs in opposition to the mandate.
“Since the mandates, we have been shunned from our place of work and from society in New York City,” Medina testified. “Years of hard work and saved money for our future have gone down the drain and will affect us on a generational level, as it’s taking away from our children and our future, and it’s taking away from our parents — who we’ve been preparing to care for in their golden years.”
In October, Medina told the “New York Mandate Podcast” — which has been highlighting the stories of New Yorkers impacted by the COVID vaccine mandate — that she had been granted a medical waiver and was reinstated to her job about nine months after being put on unpaid leave. Court papers filed by Olsen, her husband, challenging the city’s denial of his request for a religious accommodation show that he also was reinstated with a medical accommodation in September.
“I don’t feel comfortable with a government telling me that I have to put something into my body in order to retain my employment,” Medina told the same podcast back in May. “To me the difficult choice would be to go against my beliefs.”
Mandates and Messages
Adams took office in January 2022, forgoing a traditional, highly planned inauguration as a COVID safety precaution. He continued the vaccine mandate for city workers — and took steps that have added fuel to the fire of those claiming the mandates aren’t grounded in public health.
On March 24, Adams lifted the mandate for professional athletes and entertainers — arguing, in part, that the requirement had led to a significant financial loss for NYC.
In September, he announced that the private employer mandate — which his administration hadn’t been enforcing, according to Newsday — would end Nov. 1.
Separately, the federal Centers for Disease Control and Prevention announced in August that its recommendations for preventing the spread of the coronavirus didn’t distinguish between those who had recovered from it and those who were vaccinated.
The guidance was interpreted by groups who opposed the mandate as an admission that natural immunity gained from getting sick with COVID was equivalent to getting doses of the vaccine.
But Bruce Y. Lee, professor of health policy management at the CUNY Graduate School of Public Health, said that while a degree of protection is gained by recovering from coronavirus, there’s a huge range in the extent of that protection.
“I don’t think one can necessarily conclude that because they had COVID-19, they have the equivalent protection of someone who has gotten the vaccine,” Lee said. “There’s too much variability we’re seeing in studies to draw that conclusion.”
Still, Adams’ reversals and the CDC guidance have been cited in a number of lawsuits challenging the city’s denials of religious accommodations.
And just as the city’s rejections of religious accommodations cite the boilerplate language submitted by some requesters, state judges have similarly taken issue with the canned responses used by the city to deny the bulk of those requests.
This includes a host of denials by the citywide appeals panel that simply read: “Does not meet criteria.”
“While ‘Because I said so’ may be a sufficient rationale for the parent of an inquisitive toddler, it is not an adequate justification for an Article 78 proceeding,” Manhattan Supreme Court Justice Arlene Bluth wrote in her decision reinstating terminated teacher Elizabeth Loiacono on Sept 2, 2022.
Loiacono, one of the first city workers to win a lawsuit challenging her denial of a religious accommodation, was awarded $131,180 in back pay, interest and fees. Her attorney, Jimmy Wagner, said she’s been reinstated but has yet to receive any of the awarded payments.
Six weeks after that decision, which the city is appealing, Bluth also ruled in favor of NYPD officer Christopher Anderson — who sold his house in Westchester to make up for losing his income after receiving a notice that he would be terminated on Aug. 19, 2022.
Bluth called the city’s response to Anderson’s request for a religious exemption based on his Catholic faith “woeful and underwhelming.”
“That determination is a textbook example of an arbitrary and capricious finding. It is completely devoid of reasoning without which the Court is unable to evaluate whether respondents had a rational basis for it,” Bluth wrote on Oct. 20, 2022. “There is no indication that anybody even read [Anderson’s] arguments.”
On other legal fronts, former city workers have filed lawsuits questioning the constitutionality of a vaccine mandate — until recently with little success on either the federal or state level in New York City.
Other filings have targeted the legality of the city health commissioner’s order, arguing he overstepped his powers, while others have used longstanding collective bargaining requirements with municipal labor unions as the basis for the challenge.
In October, a group of 16 sanitation workers won reinstatement and back pay after Staten Island Supreme Court Judge Ralph Porzio called the vaccine mandate itself arbitrary and capricious.
A city Law Department spokesperson told the New York Post that the city was appealing that case — and noted that numerous other rulings upheld the mandate.
Another lawsuit won a seemingly significant victory in September for the roughly 18,000 members of the Police Benevolent Association, when Manhattan Supreme Court Judge Lyle Frank found that former Health Commissioner Dave Chokshi lacked the power to make changes to the work rule requirements without bargaining.
The city immediately appealed the lawsuit, staying the decision and adding months to a potential final resolution.
Three days after the decision, however, the NYPD voluntarily put a “pause” on its enforcement of the vaccine mandate, according to filings by city government lawyers in state court.
And earlier this month, a judge in Syracuse struck down the state’s vaccine mandate for health care workers, ruling that the health department had overstepped its authority by going outside the scope of public health law.