Updated October 13, 2021
On October 12, 2021, the Northern District of New York converted plaintiffs' temporary restraining order to a preliminary injunction in the case Dr. A et al. v. Hochul et al., No. 1:21-cv-1009 (DNH/ML), continuing to block the implementation of the portion of the New York State Department of Health's (DOH) order requiring health care employers to deny and/or revoke religious exemptions from the COVID-19 vaccine mandate. After reviewing each party's submissions on plaintiffs' motion, the Court held that "the State's summary imposition of [the mandate] conflicts with plaintiffs' and other individuals' federally protected right to seek a religious accommodation from their individual employer . . . and that [the plaintiffs] and others will suffer irreparable harm in the absence of injunctive relief." In so ruling, the Court found that plaintiffs established a likelihood of success on the merits for their Title VII preemption claim by establishing that the mandate's broad scope "effectively foreclose[s] the pathway to seeking a religious accommodation that is guaranteed under Title VII." The Court further held that plaintiffs established a likelihood of success on the merits for their constitutional claims under the First Amendment and Free Exercise Clause, pointing to the inclusion of a medical and religious exemption in a similar mandate issued for certain health care workers in New York just several days earlier, and the present mandate's subsequent elimination of a religious exemption while maintaining a medical exemption.
Consequently, pending a resolution of the merits of plaintiffs' constitutional claims seeking a permanent injunction, defendants continue to be enjoined from enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with the mandate to the extent it prohibits health care employers from considering religious exemption requests or requires them to revoke any previously granted exemptions. Accordingly, for the time being, health care employers must continue to process employees' requests for religious exemptions from the vaccine. Health care employers should review the Court's preliminary injunction decision in full and stay up to date with federal, state, and local laws and guidance regarding COVID-19 and mandatory vaccinations. Governor Kathy Hochul has announced that the State will be appealing the decision. We will continue to monitor the development of this lawsuit.
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On September 14, 2021, a federal judge in the Northern District of New York granted a temporary restraining order (TRO) temporarily blocking the portion of the New York State Department of Health's (DOH) COVID-19 vaccination mandate for health care workers that excludes any religious exemptions to receiving the vaccine. The TRO does not suspend the vaccine mandate in its entirety. However, for the time being, it bars the DOH from enforcing any requirement that health care employers deny religious exemptions from the vaccine or revoke previously granted religious exemptions.
Case History and Decision
On August 26, 2021, the DOH announced its regulation mandating the COVID-19 vaccine for all health care workers. The mandate went into effect on September 27, 2021. On September 13, 2021, a group of seventeen unnamed doctors, nurses, and other health care professionals filed a lawsuit challenging the regulation for its lack of religious exemption. Dr. A et al. v. Hochul et al., No. 1:21-cv-1009 (DNH/ML). The complaint alleges constitutional violations and violations of federal, state, and local anti-discrimination laws. Accordingly, the plaintiffs sought a TRO and preliminary injunction, followed by a permanent injunction, to enjoin enforcement of the mandate "to the extent it categorically requires health care employers to deny or revoke religious exemptions from COVID-19 vaccination mandates." The Court's September 14 decision granted the plaintiffs' motion for a TRO enjoining defendants "from enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with the vaccine mandate" with regard to denying, revoking, or interfering with the granting of religious exemptions from the vaccine. The September 14 order directed defendants to submit their opposition to plaintiffs' request for a preliminary injunction by September 22, 2021, and tentatively scheduled an in-person oral argument for September 28, 2021 on whether the TRO should be converted to a preliminary injunction pending an expedited resolution of plaintiffs' request for a permanent injunction. On September 17, 2021, defendants advised the Court that they intended to oppose plaintiffs' preliminary injunction request, and they further requested that the September 28 oral argument be rescheduled. In a September 20, 2021 order, the Court cancelled the September 28 oral argument citing the time-sensitive nature of the dispute, and security, health and safety concerns. Instead, the Court will hear the plaintiffs' preliminary injunction request through the parties' papers. The September 20 order also extended the TRO to October 12 and indicated that a decision will be rendered on a preliminary injunction before then.
Implications of TRO to Health Care Employers
This decision does not entirely suspend the regulation's vaccine mandate requiring health care workers to be vaccinated against COVID-19 with their first dose received by September 27. Thus, health care employers subject to the mandate should ensure they have clear policies in place for staff non-compliance and should prepare for potential staff shortages and other disruptions due to non-compliance. However, health care employers should ensure that they understand the TRO's immediate implications on mandating the vaccine where an employee requests a religious exemption, and prepare for an increase in such requests. As we previously wrote here, various federal, state, and local anti-discrimination laws mandate employers to provide reasonable accommodations to employees who seek exemption due to a sincerely held religious belief, unless doing so would cause an undue burden on the operations of the employer's business. Therefore, while the TRO remains in effect, and if the subsequent preliminary injunction is granted, health care employers must continue to entertain employees' requests for religious exemptions from the vaccine to limit potential litigation arising from claims of discrimination, harassment, or intimidation.
We will continue to monitor the development of this lawsuit. In the meantime, health care employers should review their current protocols for handling religious exemption requests for COVID-19 vaccinations and stay up to date with federal, state, and local laws and guidance regarding COVID-19 and mandatory vaccinations. Health care employers with questions about this decision or protocols regarding religious exemptions should feel free to contact the authors of this article or any other member of Venable's Labor and Employment Group.