As already reported by Underberg & Kessler LLP (available here), on September 14, 2021, the Honorable David N. Hurd, United States District Court Judge for the Northern District of New York, issued a temporary restraining order (“TRO”), which barred the New York State Department of Health (“DOH”) from enforcing, interfering with, or otherwise taking professional action with respect to any mandate requiring that certain healthcare employers deny or revoke employee religious exemptions to receiving a COVID-19 vaccination. On October 12, 2021, Judge Hurd issued an Order preliminarily enjoining the DOH from undertaking the same actions concerning religious exemptions to COVID-19 vaccination, effectively allowing healthcare employees across New York to request their employer a religious exemption from becoming vaccinated against COVID-19.
By means of background, on June 25, 2021, then-Governor Andrew Cuomo rescinded the COVID-19 public health emergency declaration that had been in effect across New York State for the previous eighteen months. Cuomo’s decision was based on “declining hospitalization and [rates of COVID-19] positivity statewide, as well as success in vaccination rates.” On August 18, 2021, DOH Health Commissioner Dr. Howard Zucker issued an “Order for Summary Action” that required general hospitals and nursing homes to “continuously require all covered personnel to be fully vaccinated against COVID-19.” The August 18 Order included a medical exemption as well as a religious exemption. Just five days later, on August 23, 2021, New York State’s Public Health & Health Planning Council (the “Health Council”), acting on a summary basis pursuant to its statutory authority under the New York Public Health Law, published a proposed emergency regulation that would quickly be adopted as § 2.61.3. This proposal expanded the vaccination requirement set forth in the August 18 Order to reach personnel in other healthcare settings and eliminated the religious exemption found in Zucker’s August 18 Order. On August 26, 2021, three days after its publication, the Health Council adopted § 2.61, which superseded the August 18 Order, becoming effective immediately.
On September 13, 2021, seventeen healthcare workers employed in New York State (“plaintiffs”), all of whom object to the existing COVID-19 vaccines on religious grounds, filed an action pursuant to 42 U.S.C. § 1983 against New York State Governor Kathy Hochul, Dr. Zucker, and New York State Attorney General Letitia James (collectively “defendants”). Plaintiffs’ three-count complaint alleges that § 2.61 violates their constitutional rights because it effectively forbids employers from considering workplace religious accommodations under processes guaranteed by federal law. Specifically, plaintiffs cited their rights arising under the Free Exercise, the Supremacy, and the Equal Protection clauses of the constitution. Pertinent here, plaintiffs sought to enjoin defendants from enforcing § 2.61 “to the extent it categorically requires health care employers to deny or revoke religious exemptions from COVID-19 vaccination mandates.”
In issuing the October 12, 2021 Order, Judge Hurd held that § 2.61 stands as an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” namely, Title VII and its mandate for employers to consider “reasonable accommodations” for religious beliefs, thus potentially violating the Supremacy Clause. In addressing the parties’ Free Exercise and Equal Protection arguments, Judge Hurd further held that plaintiffs had made a showing, at least at this early stage of litigation, that § 2.61 is not a neutral or generally applicable law, and thus violating their constitutional rights. Judge Hurd summarized the basis of his Order as follows:
The question presented by this case is not whether plaintiffs and other individuals are entitled to a religious exemption from the State’s workplace vaccination requirement. Instead, the question is whether the State’s summary imposition of § 2.61 conflicts with plaintiffs’ and other individuals’ federally protected right to seek a religious accommodation from their individual employers. The answer to this question is clearly yes. Plaintiffs have established that § 2.61 conflicts with longstanding federal protections for religious beliefs and that they and others will suffer irreparable harm in the absence of injunctive relief.
Judge Hurd made clear, however, that his Order is not meant to address how an individual employer should handle an individual employee’s religious objection to a workplace vaccination requirement. On October 13, 2021, the defendants appealed the subject Order to the United States Court of Appeals for the Second Circuit.
Although litigation on these issues will be ongoing, the effect of Judge Hurd’s Order is immediate. Employers covered by § 2.61 – which includes but is not limited to general hospitals, nursing homes, and diagnostic and treatment centers – must allow considering their employees’ legitimate requests for religious exemption from receiving a COVID-19 vaccination.
If you have any questions regarding this article, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan T. Biesenbach, the author of this piece, here or at (585) 258-2865.
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