The Richard J. Hughes Complex in Trenton (Mary Iuvone for New Jersey Monitor)

A New Jersey appellate panel heard arguments Wednesday on a challenge to Gov. Phil Murphy’s recent executive order mandating vaccines for state and county correctional officers.

Officers’ unions called the mandate “government overreach” that will cause unvaccinated officers irreparable harm by requiring them to get jabbed or lose their jobs, while the state insisted the requirement is a life-saving necessity to stop the virus’ out-of-control spread behind bars.

The three Superior Court judges did not make a decision after the two-hour hearing at the Richard J. Hughes Justice Complex in Trenton but promised to act soon.

Several unions — led by the New Jersey State Policemen’s Benevolent Association — have asked the court to block Murphy’s mandate, which applies to about 11,000 correctional officers at state prisons and county jails statewide. The mandate requires unvaccinated staff to get a first shot by Feb. 16 and be fully vaccinated by March 30. Those who remain unvaccinated face termination, according to court testimony.

Lawyers for the police unions argued correctional officers shouldn’t be required to “undergo invasive, unwanted, and unnecessary” shots they claim are “largely ineffective” against the coronavirus’ highly contagious omicron variant. That’s especially true given the omicron surge is subsiding, with daily case counts dropping, said attorney Frank Crivelli, who represented the PBA.

The governor lacks the authority to mandate vaccines without the Legislature’s approval, Crivelli contended.

Since mid-2020, the state prisons system has required all staff to prove their good health by getting weekly COVID-19 tests, and that has worked just fine, he added. Crivelli warned the mandate would drive scores of officers to resign or retire at a time when the system is already understaffed and stressed.

He also pointed to Murphy’s Monday announcement that he will lift a statewide mask requirement in schools, effective March 7.

“We are at a situation where mandates are being lifted, mandates are being moved to the side, in order to take masks off people and get them back to a normal life,” Crivelli said. “This is the only situation in which the mandates are moving in the opposite direction.”

Thousands sickened

Deputy State Solicitor Angela Cai, who argued the state’s case, countered the virus’ rampant spread behind bars justifies Murphy’s vaccine requirement for prisons staff. 

“This policy is rational and tailored to the emergency because prisons and jails are among the highest risk environments for the spread of infectious disease,” Cai said.

More than 10,000 state inmates have tested positive for the virus since the pandemic started, with thousands of them occurring during the ongoing omicron surge, according to state Department of Corrections data. Fifty-eight inmates have died, data shows.

More than 3,300 of 7,300 staff members at state prisons have tested positive since early December and had to stay home to recover or isolate, according to a state brief. “This represents one of the most critical staffing shortages DOC has ever faced,” the brief says.

The shortages have forced facilities to suspend visitation, cancel inmates’ group activities, and require staff to postpone time off and work overtime.

Attorneys from other groups — including the New Jersey Office of the Public Defender, the American Civil Liberties Union of New Jersey, and the American College of Correctional Physicians — echoed Cai’s arguments in court.

They blamed correctional officers for the coronavirus spike among inmates, saying infected officers bring the virus into prisons. Only 41% of correctional officers are vaccinated, compared to 73% of the general public, according to the state’s brief and state data.

Inmates are a population especially vulnerable to catching COVID-19 — and experiencing more severe symptoms — because they can’t socially distance and tend to have pre-existing conditions and poorer health than the general public, said Assistant Public Defender Michael R. Noveck.

Noveck, arguing for several of the amici groups, said the system’s current weekly tests haven’t stopped the virus from spreading behind bars.

“Testing is not a panacea. It’s a snapshot,” Noveck said. “You can show up to work on Monday, test negative, go home, come back on Tuesday infected, and transmit it.”

Cai, Noveck, and others argued the unions’ claim that the mandate will spark mass resignations is “speculative” and something that has not happened in other jurisdictions that mandated vaccines.

Judges elsewhere have upheld vaccine mandates for staff who work in other congregate settings, like colleges and universities, Noveck added.

The judges asked several questions that suggest they might uphold Murphy’s mandate.

Judge Clarkson S. Fisher challenged Crivelli’s claim that vaccines are invasive.

“You’re comparing a very minor invasion by way of a vaccination against the good of society and the care that’s required for incarcerated individuals under the Eighth Amendment,” Fisher said.

He pushed back on Crivelli’s argument that coronavirus-related deaths have leveled off among inmates.

“Death is not the only consequence,” Fisher said, citing the spike in ill inmates. “We should let that continue?”

At least one legislator isn’t waiting for the court’s decision to act.

Assemblywoman Beth Sawyer (R-Gloucester) introduced a bill Monday that would allow corrections officers, first responders, and health care workers to remain unvaccinated.

“These critical workers were deemed heroes at the beginning of the pandemic,” Sawyer said in a statement. “No one questioned their fundamental right to make their own medical choices then. Now they are being demonized and threatened with firing. This is not how we treat heroes in New Jersey!”

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