On November 1, 2021, the United States Court of Appeals for the Second Circuit reversed the October 12, 2021 Order of Judge David N. Hurd, District Court Judge for the Northern District of New York, and vacated the preliminary injunction enjoining 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 November 5, 2021, the Second Circuit issued a lengthy Opinion setting forth its basis for the earlier Order.
The Order – which also affirms the Order of a companion case from the Eastern District of New York – overrules the previous injunction of the vaccine mandate, granted to a group of healthcare workers who filed suit, saying they should be able to opt out of the vaccine on religious grounds.
For healthcare employers, the Order means that DOH may now enforce its regulation at 10 NYCRR § 2.61, which requires covered entities, including hospitals, nursing homes, home care agencies, and hospices, to require their personnel to be fully vaccinated against COVID-19, without regard to a religious objection. Under the New York regulation, current personnel without a medical exemption needed to receive their first dose by September 27, 2021, for general hospitals and nursing homes and by October 7, 2021, for all other entities covered under the rule.
Covered entities should review their vaccination policies to confirm compliance with the regulation and to remove any processes for determining whether they can make a reasonable accommodation for religious exemptions to the vaccine mandates. The Second Circuit’s Order does not change employers’ requirements to provide medical exemptions when a licensed physician or certified nurse practitioner certifies that immunization with a COVID-19 vaccine is detrimental to an employee’s health based upon a pre-existing health condition.
The Second Circuit’s decision came down on the same day that the United States Supreme Court refused to grant Maine healthcare workers an emergency injunction against a vaccine mandate, denying workers’ religious objections. That decision suggests that any further appeal of Friday’s decision would be expected to result in a similar finding for New York healthcare workers.
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.