The Murphy Administration decision to mandate COVID-19 vaccine for corrections officials was upheld in state court on Feb. 11.
A state appellate court panel denied the New Jersey State Policemen’s Benevolent Association (NJPBA) a restraining order halting enforcement of Gov. Phil Murphy’s COVID-19 vaccine mandate. The lawsuit was a response from all 28 PBA locals to the policy eliminating a testing option and setting deadlines for state workers in healthcare and congregate settings, such as correctional facilities, to be fully vaccinated and receive their booster shots.
‘We conclude that the Governor was fully empowered under the Disaster Control Act to enter Executive Order 283 (and) we find the executive order was authorized by the Emergency Health Act,” wrote New Jersey Superior Court Judge Clarkson S. Fisher for the unanimous three-judge panel in a 34-page ruling. “We also have no hesitancy in concluding that the Executive Order—as it applies to appellants—is rationally tailored to the problem recognized by the Governor. And we are satisfied that the individual rights asserted by appellants are of minimal weight when compared to the greater good that Executive Order 283 seeks to foster and establish…recognizing that ‘urgent public health needs of the community can outweigh the rights of an individual to refuse vaccination’.”
COVID-19 Vaccine Mandate
At issue was the vaccine mandate for those in high-risk congregate living facilities, with state workers required by Feb. 28 to get the first dose and March 30 for the second. As for those who are fully vaccinated and eligible but have not yet received their booster, they are mandated to receive a third shot of Moderna or Pfizer or a second shot of Johnson & Jonson by March 30.
PBA officials argued that change was unnecessary as the state is “experiencing a significant decline in the number of positive COVID cases as well as witnessing the transmission rate of the virus decline.”
Dr. Strangelove Argument
The court dismissed the argument that the emergency has gone on too long and the passage of time permits only lesser measures rather than the vaccine mandate by “urging the lesson of Kubrick’s Dr. Strangelove…seems to believe we all need to ‘learn to stop worrying and love the virus’.”
“In other words, this argument suggests that once disasters and emergencies are with us for more than a short while, they cease to be disasters and emergencies and simply become a way of life,” the judge wrote. “Indeed, it may be far more logical to assume that the duration of the pandemic is not so much a product of the virus but a product of an unreasoned and unreasonable resistance to vaccinations of some of our fellow citizens that may be the very thing preventing our emergence from this pandemic and a return to normalcy.”
The appeal panel ruling found that Murphy possessed the authority to issue the executive order under the Civilian Defense and Disaster Control Act as “COVID-19 certainly fits that bill” as well as the Emergency Health Powers Act. “Any argument that the Governor was not authorized by the Disaster Control Act is frivolous,” the court wrote in its decision.
Benefits of Vaccine
The judges further stated their findings of a rational link between the vaccine mandate and “the many benefits—and little downside—it will bring in securing immunity by way of vaccination instead of through the lesser measures preferred by these appellants. Vaccinations will result in fewer missed work days resulting from infections, and accelerated immunity via vaccination is far more likely to achieve a slowing of the rate at which variants will emerge as well as reduce the impact of future variants.”
PBA Local 105 President William Sullivan, which represents more than 5,000 state corrections officers, vehemently opposed the mandate and questioned the effectiveness of the vaccine against the omicron variant when the lawsuit was announced.
“Testing was and still is working, especially in light of the fact that we had close to an equal number of positive cases derived from officers that were fully vaccinated as compared to those that were unvaccinated,” said Sullivan. “I believe everyone agrees that the science and statistics have demonstrated that the vaccines have been ineffective in stopping the transmission of the variant.”
Low Vaccine Rate at DOC
In its ruling, the judges noted only 41.2% of correctional staff reported they had received the primary series of a vaccine, paling in comparison to 61.6% of inmates in the same category. They connected those numbers with the DOC experiencing significant COVID-related staff shortages. From Dec. 2, 2021, to Jan. 27, 3,309 staff members—45.3% of the workforce—tested positive for the virus and were unable to report to work until completing a period of self-isolation.
“This evidence strongly suggests, as the Attorney General argues, that correctional facility staff members are ‘a vector of disease transmission between the community and incarcerated individuals’ and ‘an avenue for COVID-19 to enter the prison’,” stated the court. “And yet, the sad fact remains that less than half of DOC officers and only slightly more than half of JJC correctional officers have been vaccinated.”
“From a purely operational perspective, the lack of vaccinations has had a profound effect on the JJC’s and the DOC’s abilities to fulfill their functions. This circumstance provided ample reason for the inclusion of (correction officers,)” the court concluded.
Casting Doubts on Retirements
Additionally, the court was dubious in regards to the argument that the vaccination mandate will cause staff shortages because correction officers would rather walk away from their jobs than get vaccinated.
“They base this on rank speculation that their unvaccinated members will prefer retirement, resignation, or termination over vaccination. We question the legitimacy of that prognostication; we think it unlikely that appellants’ members would rather face the possible loss of employment rather than permit a momentary jab in the arm,” the judge said.
“But, even if the vaccination mandate may cause a reduction in the workforce through contumacy, the continuation of the vaccination-or-testing regime heretofore in effect that they prefer, also leads to multitudes of positive tests, absences from work, and severe staff shortages in places of incarceration.”
“Responsibilities…Toward Each Other”
The court throughout the ruling decried union members for putting their own interests above society’s.
“In focusing solely on their own self-interests, appellants overlook that others are also impacted by the executive order. Indeed, in seeking a stay, they place great weight in the momentary ‘invasion’ of their members’ bodies and their own unexplained unwillingness to be vaccinated, on the one hand, and little or no weight on the interests of their fellow citizens,” the judges observed.
The three judges concluded their ruling by stating “In the final analysis, there are times when individual self-interests like those asserted by appellants must take a backseat to the responsibilities we all have toward each other, a point President Kennedy far more eloquently expressed in his 1961 inaugural address. The appeals are dismissed.”
The cumulative number of confirmed coronavirus cases in New Jersey as of Feb. 11 was 1,851,340 with 2,224 total new PCR cases. There were 495 probable cases, bringing the cumulative total of antigen tests to 290,817. The total number of individual cases for the state is 2,142,157.
As for those that have passed, the state reported 60 confirmed deaths, bringing that total to 29,382. The state listed probable deaths at 2,937, bringing the overall total to 32,319. State officials noted 16 deaths occurred in the last 24 hours of reporting that have not yet been lab confirmed.
For North Jersey counties on Feb. 11, Bergen had a total of 192 new confirmed cases and 39 new probable cases, Essex 164 new cases and 23 new probable case, Hudson 142 new cases and 11 new probable cases, Morris 105 new confirmed cases and 51 new probable cases, Passaic 98 new cases and 17 new probable cases, Sussex 48 new cases and nine new probable cases, and Warren 27 new cases and four new probable cases.
Of the total confirmed deaths in North Jersey, Essex County has the most with 3,214, followed by Bergen at 3,043, Hudson with 2,447, Passaic at 2,086, Morris at 1,205, Sussex at 363, and Warren County at 303.
In regards to probable deaths reported Feb. 7, Bergen has 321, Essex has 310, Morris has 284, Hudson has 223, Passaic has 203, Sussex has 82 and Warren has 27.
As for the rate of transmission reported Feb. 11, it declined to 0.49 from 0.51 the day before. The daily rate of infections from those tested Feb. 6 was 9.8%; by region, the rate was 8.5% in the North, 10.9% in the Central region and 12.4% in the South.
The state’s dashboard had a count of 1,641 patients hospitalized as all 71 hospitals in the Garden State filed reports Feb. 11. By region, there were 631 in the North, 556 in the Central and 454 in the South. Of those hospitalized, 322 are in intensive care units and 201 on ventilators. A total of 275 patients were discharged in the last 24 hour reporting period.
Officials have continually cited transmission rate, hospitalizations, intensive care units, ventilators and positivity rate as health data they rely on to track how the coronavirus is being contained in New Jersey, guiding them in determining when restrictions have to be tightened or lifted.
Long-term Care Facilities
Health officials noted 545 long-term care facilities are currently reporting at least one case of COVID-19, accounting for a total of 26,821 of the cases, broken down between 12,402 residents and 14,419 staff.
Cumulatively, 2,357 long-term care facilities have reported an outbreak infecting 46,327 residents and 37,605 staff, for a total of 83,932.
The state’s official death total will now be reported as those that are lab confirmed, sits at 9,142 on Feb. 11. The facilities are reporting to the state 8,464 residents deaths and 149 staff deaths.
The number of COVID-19 vaccines administered in New Jersey totaled 13,558,388 in-state, plus an additional 553,178 administered out-of-state for a grand total of 14,112,634 as of Feb. 11.
Of those who have received the vaccine, 6,452,807 received their second dose or the one jab Johnson & Johnson dose in state and another 221,815 out of state, bringing those fully vaccinated to 6,674,622. With just under 8.5 million eligible in New Jersey to be vaccinated, 77% are fully vaccinated and 91% have received at least one dose.
State officials reported boosters and third shots of 1,535,510 for Pfizer and 1,277,856 for Moderna. A total of 61,494 New Jerseyans have received their Johnson & Johnson booster shot. Overall, 2,874,860 have received a booster or third shot. Overall, 51% of the 5.6 million of those eligible have received their booster.
In North Jersey, Bergen County has 708,283 residents fully vaccinated, Essex 574,125, Hudson 514,278, Morris 379,974, Passaic 349,191, Sussex 91,088, and Warren 59,242.
According to the state dashboard with 63.6% of all New Jersey schools reporting, new student cases totaled 6,457 and new staff cases 1,536 in the last week as of Jan. 30. Cumulatively, 130,820 cases have been reported— 102,237 students and 28,583 staffers.
In regards to outbreaks related to in-school transmissions as of Feb. 8, the state has tracked 484 school outbreaks and 3,255 cases linked to those outbreaks since the 2021/2022 school year starting Aug. 7, up 19 outbreaks and 117 cases from the week previous.
Outbreaks are defined as three or more laboratory confirmed COVID-19 cases among students or staff with onsets within a 14 day period, linked within the school setting, do not share a household, and were not identified as close contacts of each other in another setting during standard case investigation or contact tracing.
For North Jersey in the new report, Bergen County has 55 confirmed outbreaks with 304 cases, Morris County has 40 confirmed outbreaks with 241 cases, Essex County has 31 confirmed outbreaks with 225 cases, Passaic County has 22 confirmed outbreaks with 188 cases, Sussex has 34 confirmed outbreaks with 183 cases, Hudson County has 19 confirmed outbreaks with 92 cases and Warren County has two confirmed outbreaks with 15 cases.