NY appeals court upholds discipline of worker over COVID vaccine

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A state appeals court overturned a lower court ruling in favor of a state worker who failed to get a COVID-19 vaccination.

Kristin Davis was a dental hygienist employed by the Buffalo Psychiatric Center’s dental clinic. In 2021, her employer told her to get a COVID-19 vaccine.

She was told, if she failed to get vaccinated or obtain a reasonable accommodation, based on a documented pre-existing health condition, she would not be permitted to work.

Her request for a reasonable accommodation due to a pre-existing health condition was denied and she did not get a vaccine by the deadline.

Consequently she was suspended without pay and issued a notice of discipline in accordance with the collective bargaining agreement (CBA) with her union.

Davis filed a disciplinary grievance and demanded arbitration.

The arbitrator concluded that his jurisdiction was limited to interpreting and applying the provisions in the CBA. Therefore, he lacked the authority to determine whether the state should have granted Davis a reasonable accommodation due to a pre-existing health condition.

The arbitrator also concluded that the state met its burden of establishing misconduct which prevented Davis from performing her job duties.

The arbitrator concluded that the state had probable cause to suspend Davis and just cause to issue the notice of discipline and terminate her employment.

Davis filed an Article 75 petition seeking to vacate the arbitration award.

State Supreme Court Justice Gerald J. Greenan III concluded that “the arbitrator’s award violated public policy, that it was irrational, and that vacatur was in the interest of justice.”

Greenan found that the arbitrator did not consider whether Davis was entitled to a reasonable accommodation that negated her obligation to obtain the vaccine, and ignored several trial court decisions “concluding that similar vaccine mandates were null and void,” according to the Fourth Department’s decision.

Greenan granted Davis’s petition, vacated the arbitration award, ordered Davis be reinstated, and that her employment record be amended, and ordered that the parties negotiate any questions of retroactive pay and benefits.

The Fourth Department reversed Greenan’s ruling.

“A court’s authority to vacate an arbitrator’s award is limited to the grounds set forth in New York Civil Practice Law and Rules 7511 (b), which permits vacatur of an award where the arbitrator, as relevant here, exceeds their power by issuing an award  that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power,” the Fourth Department wrote.

When the parties agree to submit disputes to an arbitrator under a collective bargaining agreement, courts are bound by an arbitrator’s factual findings, interpretation of the contract, and judgment concerning remedies, the court wrote.

“A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one,” the court wrote.

“Even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice,” the panel wrote.

The court ruled that there is no dispute that Davis was directed to get vaccinated by a specific date, that she was told that her continued employment depended on it, and she refused to be vaccinated by the required date.

Davis also was never granted a reasonable accommodation that would have excused her compliance with the vaccine mandate, the court noted.

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