November 09, 2021

Second Circuit Gives the Green Light on New York's Vaccine Mandate Banning Religious Exemptions for Healthcare Workers

7 min

Updated November 12, 2021

The United States Court of Appeals for the Second Circuit has issued a 50-page opinion supporting its decision that Plaintiffs in Dr. A et al. v. Hochul et al., No. 21-2566, on appeal from the Northern District of New York, and We The Patriots USA, Inc., et al. v. Hochul, et al., No. 21-2170, on appeal from the Eastern District of New York, failed to establish that New York's COVID-19 vaccine mandate for healthcare workers violates their constitutional rights or is otherwise preempted by Title VII of the Civil Rights Act.

The Second Circuit's written decision gives healthcare employers guidance on how to implement and comply with the vaccine mandate while also complying with Title VII's requirement that employers make reasonable accommodations for an employee's religious beliefs. The Second Circuit noted that the mandate, "on its face, does not bar an employer from providing an employee with a reasonable accommodation that removes the individual from the scope of the" mandate. Therefore, the Court held, the mandate "does not require employers to violate Title VII because, although it bars an employer from granting a religious exemption from the vaccination requirement, it does not prevent employees from seeking a religious accommodation allowing them to continuing working consistent with the [mandate], while avoiding the vaccination requirement." Title VII does not require employers to offer employees the accommodation that they prefer, but only an accommodation that is reasonable and that does not cause the employer an undue hardship.

The Court's decision makes clear that healthcare employers must ensure their mandatory vaccination policies and procedures comply with both the state's vaccine mandate and Title VII. Thus, while this may require the denial of pending or future requests for a religious accommodation or revocation of a previously granted accommodation, healthcare employers should continue to make these determinations on a case-by-case basis. This means that employers should consider the employee's current job duties and requirements and whether such employee can be reasonably accommodated by removing them from "the scope of the" mandate (e.g., teleworking or transfer to a position that does not require contact with other employees, patients, or residents) without imposing an undue burden on the employer.

Shortly after the Court's October 29 order and before the Court issued its 50-page decision, the We the Patriots Plaintiffs submitted an Emergency Application for Writ of Injunction Relief to the United States Supreme Court, requesting that the Supreme Court issue an emergency stay against the enforcement of the vaccine mandate pending the filing and disposition of a petition for review of the Second Circuit's decision. Plaintiffs' Emergency Application states that they intend to petition the Supreme Court for review of two issues – that the mandate violates Plaintiffs' constitutional rights to privacy, medical freedom, and bodily autonomy under the Fourteenth Amendment and the Free Exercise Clause of the First Amendment. Plaintiffs only apply for injunctive relief as to the latter. On November 10, 2021, respondents filed a response to Plaintiffs' Application requesting that the Supreme Court deny Plaintiffs' Application. We will continue to monitor the development of this lawsuit and any further guidance released on implementing and enforcing the state's vaccine mandate.

As we previously reported, on October 12, 2021, the Northern District of New York granted a group of healthcare workers' request for a preliminary injunction temporarily enjoining the State of New York from enforcing its COVID-19 vaccine mandate to the extent that it denies healthcare workers a religious exemption to receiving the vaccine. On October 29, 2021, the United States Court of Appeals for the Second Circuit vacated the District Court's decision and upheld the vaccine mandate's exclusion of a religious exemption to receiving the vaccine. The appellate court's ruling has immediate implications for healthcare employers in New York with employees refusing the vaccine for religious purposes.

A group of seventeen unnamed doctors, nurses, and other healthcare professionals sought a temporary restraining order (TRO) and preliminary injunction against the State of New York's COVID-19 vaccine mandate for healthcare workers, arguing that its exclusion of a religious exemption violates their constitutional rights and protections under federal, state, and local anti-discrimination laws. In converting the plaintiffs' TRO to a preliminary injunction, the District Court held that the mandate conflicts with plaintiffs' and other individuals' federally protected right to seek a religious accommodation from their individual employer by effectively foreclosing the pathway to seeking a religious accommodation as guaranteed under Title VII. The State of New York then appealed the District Court's decision.

On October 27, 2021, the United States Court of Appeals for the Second Circuit heard arguments on the State's appeal of the District Court's decision in tandem with a similar case where a separate group of healthcare workers appealed from an order of the Eastern District of New York denying their request for a preliminary injunction against the mandate. On October 29, 2021, the Court of Appeals vacated the Northern District's grant of plaintiffs' preliminary injunction in Dr. A et al. v. Hochul et al., No. 21-2566, and affirmed the Eastern District's denial of a preliminary injunction in We The Patriots USA, Inc., et al. v. Hochul, et al., No. 21-2170, thereby allowing enforcement of the vaccine mandate against healthcare workers claiming a religious exemption. Both cases were sent back to the district courts for further proceedings consistent with the Court of Appeals order. Consequently, plaintiffs in both cases may continue their efforts in the district courts or petition the United States Supreme Court to hear their cases.


Regardless of how the plaintiffs decide to proceed, the Court of Appeals order has far-reaching implications for healthcare employers. In light of the Court's order, healthcare employers must now require all of their personnel who could potentially expose other personnel, patients, or residents to COVID-19 to be fully vaccinated against the disease, without regard to a religious objection. This requirement applies to all employees, including those with pending religious exemption requests and those who were previously granted an exemption. The Court's order does not change employers' obligations to provide exemptions for covered medical reasons. The Court of Appeals has not yet issued a written decision, but it indicated that one is forthcoming. Without a more detailed opinion from the Court of Appeals or further guidance from the State, the new deadlines for compliance and how to implement the mandate are not yet clear. This is of particular note for healthcare employers who are subject to both the State's vaccine mandate and Title VII of the Civil Rights Act, which mandates that employers make reasonable accommodations for an employee's religious beliefs, as long as the accommodation does not impose an undue hardship on the employer.

Pending further guidance from the State or the Court's forthcoming decision, it appears that to minimize exposure to liability under both the State's mandate and Title VII, healthcare employers should review all pending requests and previously granted religious exemptions and deny or revoke religious accommodations for personnel whose job duties include contact with other personnel, patients, or residents such that they could expose these individuals to COVID-19. Accordingly, healthcare employers should notify such employees that their requests or previously granted exemptions are being reconsidered in light of the Court's decision, which may lead to denial of their request or revocation of their exemption. Such notification should also inform employees of their obligations under the mandate to become fully vaccinated and provide guidance to employees on the expected time frame for compliance and the relevant procedures during such time frame.

We will continue to monitor the development of this lawsuit and any guidance regarding enforcement and implementation of the mandate. In the meantime, healthcare employers should review their vaccination policies and current protocols for processing religious exemptions for COVID-19 vaccinations to confirm compliance with the mandate and Title VII and clearly outline the potential consequences for failing to comply with the vaccine mandate. Healthcare employers and employees alike are likely to face tough decisions in the coming weeks in complying with the vaccine mandate. Employers must decide the proper course of action for employees who are in the process of complying with the mandate and for employees who decline to comply. Similarly, employees must decide whether to comply or to risk the consequences for non-compliance. Employers should understand the effects that these decisions could have and should prepare for a potential increase in attrition and morale concerns at the workplace. Healthcare employers with questions about this decision or protocols regarding compliance with the mandate should feel free to contact the authors of this article or any other member of Venable's Labor and Employment Group.