Supreme Court Declines to Consider Nurses’ Challenge to NJ COVID-19 Booster Mandate

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On November 13, 2023, the Supreme Court declined to consider, without comment, the case of Katie Sczesny, et al. v. Murphy, Gov. of New Jersey, et al.  Petitioners in this case are nurses who were subject to Governor Murphy’s Executive Orders Nos. 283, 290, and 294, issued on January 19, 2022, March 2, 2022, and April 13, 2022, respectively, which required workers in healthcare settings to be “up to date” with COVID-19 vaccinations, including boosters for which the employee was eligible.   Although Petitioners each received at least one initial dose of the COVID-19 vaccine, they declined to receive additional boosters for a variety of personal reasons.  After refusing to receive booster shots, three of the nurses were terminated and one resigned to avoid termination. 

Petitioners filed a Verified Complaint on April 21, 2022, seeking a preliminary injunction from enforcement of the Executive Orders.  The application was denied on June 7, 2022.  Petitioners appealed to the Third Circuit Court of Appeals on July 6, 2022, and oral argument was held on March 21, 2023.  On June 12, 2023, Governor Murphy rescinded the Executive Orders at issue.  On June 14, 2023, the Court of Appeals denied Petitioners’ appeal as moot in light of the rescission of the Executive Orders, as there was no longer a “live issue for review,” but offered no comment as to the merits of the case itself and remanded for further proceedings.

In their petition for certiorari, Petitioners argued that the appeal was not, in fact, moot because (a) the mandate could be reinstated, and (b) relief was still available to the nurses in the form of judicial recognition that the Executive Orders were unenforceable, thus nullifying the basis for their termination. 

With the Supreme Court’s denial of certiorari, the lower court’s decision upholding the Executive Orders stands.  Given that the COVID-19 pandemic is, in many minds, in the rearview window, and most vaccination mandates have already been rescinded, it remains to be seen whether the Supreme Court will at some point take up another challenge of this type.

Employers are cautioned to continue to consult with employment law counsel regarding any vaccination policies.


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