Does the regulation rationally protect public health without violating a fundamental right?

The latest case involves an unvaccinated Niagara Falls man who lost his job as a computer technical support specialist at Erie 1 BOCES in West Seneca after refusing to comply with a weekly Covid-19 testing requirement. Julian A. Urban, 55, had been employed there for 13 years.

"My client refused to give up his personal rights and ended up losing his job over it," attorney Carl J. Schwartz Jr. said during a hearing Wednesday before U.S. Magistrate Judge Jeremiah J. McCarthy.

His legal action is one of three Covid-19 federal court cases judges have dealt with recently in Western New York. Other court challenges targeted the state's Excelsior Pass and the state's isolation and quarantine procedures.  

Rules and restrictions have lessened since the January peak of Omicron, the coronavirus variant that swept through the state and rest of the nation. Last month, for example, New York State stopped requiring mask wearing in schools. So some court fights became moot by the time they reached judges for a ruling. But some regulations remain, like the one requiring all teachers, administrators and other school employees to submit to weekly Covid-19 testing unless they show proof of vaccination.

Several local lawsuits filed in the first two years of the pandemic succeeded at chipping away at rules that judges found to be excessive or irrational, such as orders to close a laser-tag center and forbid tanning services. But federal judges generally gave then-Gov. Andrew Cuomo wide latitude to implement the emergency measures he deemed reasonably necessary to protect the public against the disease. On Friday, Gov. Kathy Hochul extended the state's Covid-related state of emergency through May 15.

The BOCES case deals with a regulation by the state Health Department that requires all unvaccinated teachers and staff working in a school setting to get tested once a week. The state drops the testing requirement for those who get vaccinated.

Urban refused to disclose his vaccination status and to submit to weekly testing, saying the requirement "violates his right of bodily autonomy and informed consent," according to his lawsuit.

Urban sued Dr. Mary T. Bassett, the state commissioner of health, and Lynn Fusco, superintendent of schools of Erie 1 BOCES.

This is not a vaccine mandate case; it is a testing requirement case, Assistant Attorney General David Sleight said at Wednesday's hearing.

"There is no vaccine mandate," Sleight said.

The Health Department's rules for testing in schools do not require anyone to get a vaccine, just a weekly Covid-19 test, he said.

In court papers, Sleight said Urban's lawsuit should be dismissed because the Health Department's actions "in responding to the worst public health crisis in more than a century were not arbitrary, conscience-shocking or oppressive in the constitutional sense."

The weekly testing enables schools to immediately identify Covid-19 positive individuals, even if they are not symptomatic, to prevent further transmission, he said in court papers.

Urban was simply required to take "a nasal swab" as a way to protect schoolchildren, Sleight said at the hearing.

"It's difficult to imagine how that ... shocks the conscience of the court," Sleight told McCarthy.

What's more, courts have found there is not a fundamental right to continued public employment, he said in court papers.

Erie 1 BOCES provides K-12 educational programs in alternative education, career and technical education and special education. 

Attorneys Ryan G. Smith and Meghan M. Hayes, who represent Fusco, also requested McCarthy dismiss Urban's lawsuit, cited a ruling from the Manhattan-based 2nd U.S. Circuit Court of Appeals that held the state's vaccine mandate for health care workers did not violate any fundamental constitutional right. 

Urban had the option to voluntarily disclose his vaccination status or provide evidence of a negative test on a weekly basis.

"Courts across the county have found that more burdensome vaccine mandates, which do not offer individuals such a choice, are constitutional," they said in court papers.

Excelsior Pass

Sleight turned to a recent ruling in Rochester upholding the state’s Excelsior Pass to support his effort to get Urban's lawsuit dismissed.

In the Rochester case, Michael Corrin Strong sued to prohibit the state from enforcing any regulations drawing a distinction between vaccinated or unvaccinated persons.

Strong asserted the state’s Excelsior Pass, an electronic record that shows an individual's vaccination history, violates the equal protection rights of unvaccinated individuals, particularly those who claim natural immunity as a result of previously contracting and recovering from Covid-19.

Strong's lawsuit sought to end the Excelsior Pass program, force the state to recognize natural immunity as being as effective as vaccination in preventing the spread of Covid-19 and prevent the state from enforcing any regulations drawing a distinction between vaccinated and unvaccinated persons.

U.S. District Judge David G. Larimer dismissed Strong's lawsuit.

The judge noted that the Excelsior Pass is a free, voluntary platform that provides secure, digital proof of Covid-19 vaccination or negative test results.

Nobody is required to enroll in the Excelsior Pass program.

Strong did not show how the Excelsior Pass program harmed him in any way, Larimer said in his March 28 decision.

"It is not the task of this court to set public health care policy or to reach its own decision about how best to deal with the Covid-19 pandemic," Larimer said. "The only proper function of the court is to determine whether the state’s decisions have a legitimate end and a rational basis for achieving that end."

That's the standard the Attorney General's Office wants used in the Urban case.

Isolation and quarantine procedures

Those behind a third recent case call their separation of powers argument a more sweeping and fundamental challenge.

State Sen. George M. Borrello, whose district includes parts of or all of Allegany, Cattaraugus, Chautauqua and Livingston counties, joined two Assembly members from Schoharie and Rockland counties in a lawsuit against Gov. Kathy Hochul and the state health commissioner. Their lawsuit asserts the state's isolation and quarantine procedures outlined in a state regulation violate the state constitution because the State Legislature did not authorize them.

Also listed as a plaintiff is Uniting NYS, which describes itself as a citizens’ rights advocacy organization dedicated to promoting the civil and legal rights of New Yorkers.

They filed suit on April 4 in State Supreme Court in Cattaraugus County, but the case was transferred to federal court this week at the request of the state.

The regulation, the lawmakers contend, gives "unbridled power" to the health commissioner to determine who should be isolated or quarantined, including people who may or may not actually be infected as well as those who have only possibly been exposed to a communicable disease.

The governor and health commissioner "want to act like it is still March of 2020, when the virus was new, fear permeated everyone's thoughts and actions, and there were no treatment protocols or testing capabilities," according to the lawsuit.

"The body that makes policy in the state isn’t the governor. It’s the Senate and Assembly," said attorney Thomas Marcelle, who, with Roberta A. Flower Cox, represents the lawmakers.

“That’s their decision to make – not the governor’s," Marcelle said of the isolation and quarantine rules. ”That’s what this lawsuit is all about."

The provisions in the regulation are "the sum and substance of a failed Assembly bill" that did not advance in the Assembly or have a companion bill in the Senate, according to the lawsuit.

Health Department officials "are applying a blanket policy to everyone regardless of age, medical history, vulnerability and other factors specified by the CDC regarding Covid-19 issues and survival rates," according to lawmakers' court papers.

The lawmakers want the case moved back to state court, so they revised their lawsuit to include only New York State constitutional and statutory grounds, striking references to the U.S. Constitution that would give the federal court jurisdiction.

U.S. District Judge Lawrence J. Vilardo scheduled an oral argument for Tuesday.