On September 14, 2021, a temporary restraining order (“TRO”) was issued by the Honorable David N. Hurd United States District Court judge for the Northern District of New York allowing New York State health care workers to seek religious exemptions to the recently issued COVID vaccine mandate due to go into effect at general hospitals and nursing homes on September 27, 2021 and at other covered entities on October 7, 2021.
The State Department of Health had issued the mandate in August 2021 based on the COVID Delta variant’s continued spread throughout the state and the country. Seventeen plaintiffs sought the TRO and hope to turn it into a preliminary injunction, and then into a permanent injunction at the conclusion of the case. Plaintiffs’ legal arguments are constitutional, based on the 1st and 14th Amendments, the Supremacy Clause, and the Equal Protection Clause of the United States Constitution. The state has indicated its intention to oppose the TRO in effect and the proposed injunctions, as it filed a motion requesting that the court move up the scheduled September 28, 2021 court date on the matter to September 24, 2021. The court responded yesterday by canceling the September 28, 2021 date, extending the TRO until October 12, 2021, and stating it will decide the issue on the papers only by October 12th. The state has until September 22, 2021 to file its opposition papers, and no reply papers from Plaintiffs are permitted. The attorneys for the parties will certainly be arguing about how or if prior law permitting schools to override religious exemption claims in mandating certain vaccines will apply here. Interestingly, a United State District Judge in Brooklyn declined to issue a TRO in a similar case about religious exemptions to the COVID vaccine mandate, and the plaintiffs there have filed an expedited appeal to the Second Circuit Court of Appeals.
As a practical matter, if the religious exemption is available, employees must only show a sincerely held religious belief that compels them to refuse the COVID vaccines that are currently available. Such employees may attempt to prove that sincerely held belief however they choose, and generally courts in New York have been permissive in finding a sincere belief in the context of discrimination cases. For example, the belief need not come from a long-established or well-known religion; it just needs to be sincere.
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 Paul F. Keneally, the author of this piece, here or at (585) 258-2882.