Can DOE employees seeking to enjoin the vaccine mandate obtain a temporary injunction pending the trial of their complaint?

No. On August 24, 2021 the DOE mandated that all employees obtain at least the first shot of the Covid-19 vaccine by September 27th.

On September 10 the UFT filed a Declaration of Impasse with the Public Employment Relations Board over the impact of the vaccine mandate. The matter was submitted to an arbitrator and an appeal mechanism was ordered which included a process to challenge a refusal to vaccine on religious and medical grounds and request accomodations requests. (see the decision, cited below, for a summary of the arbitration award and subsequent agreements which implemented the award.)

On November 19, 83 DOE employees filed an action in Federal District Court claiming that the DOE and the UFT conspired to deprive them of their procedural due process rights including being disciplined without going through the 3020-a hearing process.

In order to obtain a temporary injunction the Court wrote that the DOE employees must show a clear or substantial likelihood of success on the merits and that the employees cannot be made whole should they prevail in their action.

The Court found that the arbitration award, now part of the collective bargaining agreement contains procedural safeguards which include a review process. As far as the irreparable harm the court wrote, “the Court does not dispute that a loss of income is a hardship. The loss of one’s wages, particularly for those with financial commitments and dependents, is a real, tangible harm. In order to demonstrate an entitlement to injunctive relief, Plaintiffs may not simply identify a general loss. Instead, Plaintiffs must identify a harm for which available legal remedies and monetary damages would be inadequate.”

Nicole BROECKER, et al, Plaintiffs, v. New York City Department of Education, City of New York, Meisha Porter, in her official and individual capacities, United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, Michael Mulgrew, in his official and individual capacities, John Doe #1-10, in their official and individual capacities, and Jane Doe #1-10 in their official and individual capacities, Defendants. United States District Court, E.D. New York. November 24, 2021.


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