Judge reinstates fired Roswell Nurse who refused COVID-19 vaccine

judge Colaiacovo 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.

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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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.

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.

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“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.

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.”

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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.

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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.