A judge has reinstated a Roswell Park Comprehensive Care Center nurse who was fired for refusing to be vaccinated for Covid-19, and in so doing cast a disapproving look at how public officials handled the pandemic.
An arbitrator’s January decision upholding Wendy Cooper’s firing was “irrational, violative of public policy and contrary to the interests of justice,” State Supreme Court Justice Emilio Colaiacovo ruled.
The judge directed Roswell Park to negotiate over her retroactive pay and benefits.
Colaiacovo called the issue before him narrow: Did the arbitrator rationally decide Cooper’s case? But his written decision offered a wider criticism of how some public officials overstepped their bounds while others ceded their powers to others amid the pandemic.
“Ms. Cooper is an unfortunate victim in the wake of excesses exhibited by governors, administrators, legislatures, and yes, even the judiciary,” Colaiacovo wrote in his decision. “All too frequently did critical thinking and the exercise of personal liberties expire at the altar of false righteousness, fear and authority.”
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Roswell Park declined to comment but confirmed it will appeal Colaiacovo’s decision.
Nearly 36,800 health care employees in New York – about 3.5% of the state’s health care workforce – lost their jobs, resigned, retired or were furloughed due to being unvaccinated against Covid-19, according to data released by the state in late April 2022, the most recent figures available. That included several hundred, if not thousands, of employees across Western New York.
Roswell Park suspended Cooper and took steps to fire her in late 2021, saying it had no other choice at the time given the state Health Department’s Covid-19 vaccine mandate for health care workers. The vaccine requirement was controversial when it went into effect in fall 2021, and it triggered lawsuits across the state from those who resisted vaccination even at the risk of their jobs.
Those filing lawsuits did not fare well in lower courts, and the U.S. Supreme Court also rejected challenges over New York’s refusal to allow religious exemptions to the state’s mandate that health care workers be vaccinated against Covid-19.
Statewide decisions
But the legal landscape changed in New York in January when State Supreme Court Justice Gerard J. Neri in Onondaga County ruled that the state Health Department, Gov. Kathy Hochul and former Health Commissioner Mary T. Bassett violated the boundaries of their authority in making the Covid-19 vaccine mandate permanent for health care workers.
“We think the landscape is pretty clear now,” said attorney Edward J. Greene Jr., who represented Cooper and her union, the New York State Public Employee Federation.
Greene asked Colaiacovo in April to vacate the arbitrator’s decision that allowed Roswell Park to terminate Cooper’s employment. The timing of the arbitrator’s decision in January proved pivotal to Colaiacovo, because it came two weeks after Neri declared the vaccine mandate “null, void and of no effect” in an unrelated lawsuit filed by a group called Medical Professionals for Informed Consent. And Neri’s decision had not been stayed yet by a state appeal when the arbitrator ruled, so Cooper’s lawyers argued there was no longer any vaccination mandate.
In May, the state announced it stopped enforcing the vaccination requirement and would repeal the regulation “due to the changing landscape of the Covid-19 pandemic.”
While the arbitrator in Cooper’s case mentioned Neri’s decision in a footnote in his written arbitration ruling, the arbitrator ignored it as a factor in his ruling. The arbitrator found that Cooper – simply because she refused the vaccine – was derelict in her duties, incompetent, insubordinate, and that Roswell Park had just cause to fire her.
In his decision, Colaiacovo cited Neri’s ruling, saying that when there is a change of law while the arbitration is ongoing, a hearing officer or arbitrator cannot simply elect to ignore it.
“Since the mandate which formed the basis for Ms. Cooper’s termination was found to be invalid while the matter was being litigated (in arbitration), the arbitrator’s decision upholding the termination must be vacated,” Colaiacovo ruled.
Cooper’s lawyers stressed the Neri ruling in their bid to overturn her termination. During a hearing earlier this month, Colaiacovo quizzed Roswell Park’s attorney about why the arbitrator ignored that ruling. Colaiacovo’s questioning and eventual ruling focused on the arbitrator’s lack of reaction to Neri’s ruling this past January – not on why Roswell Park initially suspended Cooper and began termination proceedings in 2021.
Roswell Park contended the arbitrator should not have been bound by Neri’s ruling in Onondaga County because it was one of a number of cases across the state.
‘A stellar employee’
Attorney Michael E. Hickey, who represents Roswell Park, told Colaiacovo the Cooper case should turn on one issue: At the time Roswell Park fired Cooper, it had just cause to do so.
The arbitration was not over the legality of the Health Department mandate but whether Roswell Park had just cause to fire her, Hickey said. If Roswell Park had allowed her to work unvaccinated, the cancer center would have been in violation of a state regulation, Hickey said.
“What else are they supposed to do?” Hickey asked during the hearing before Colaiacovo earlier this month.
Also, Neri’s State Supreme Court order in Syracuse was at odds with a State Supreme Court ruling in Albany County.
“His decision is in conflict with another decision in Albany,” Hickey told Colaiacovo at the hearing.
But Greene told Colaiacovo that the arbitrator based his decision entirely upon a state regulation that a judge had declared unenforceable because the State Legislature had not adopted the vaccine mandate.
So Roswell Park could not impose discipline based on a state regulation that went beyond the Health Department’s authority, he said.
Hired in 2016, Cooper had no prior disciplinary issues during her employment, Greene said.
The disciplinary charges confirmed by the arbitrator’s report would have followed Cooper beyond Roswell Park. Without the judge overturning the arbitrator’s decision, “she’s going to wear that the rest of her career” on her professional record, Greene said at hearing.
Colaiacovo, in his decision, noted that other than refusing the vaccine, Roswell Park conceded “Cooper was a stellar employee without blemish.”
“It is troubling to find that this arbitrator found it fair and just to confirm Cooper’s termination despite there being scant evidence of Ms. Cooper being derelict in her duties, incompetent or insubordinate, other than refusing to take a vaccine pursuant to a mandate which was found to be found null and void, that the person issuing the mandate lacked the authority to do so, and that the rule was unenforceable,” the judge wrote.
Roswell Park has reached out to the union health care employees who were suspended for not getting vaccinated and inviting them back to work without requiring them to be vaccinated, according to Greene’s court papers. Roswell Park confirmed that previously terminated employees may apply for open positions.
