United States District Court Judge R. Stan Baker issued a nationwide injunction today blocking the COVID-19 vaccine mandate for federal contractors. This effectively prohibits the US government from enforcement and temporarily shuts down the latest vaccine requirement by the Biden administration. The case was brought by several state governors and attorneys general, as well as other state entities, claiming that the mandate is unconstitutional as it violates the 10th Amendment. It was also argued that only Congress has the power to make rules, not the President and that the mandate violates several federal laws. The Court found that although the pandemic has taken a “tragic toll,” Congress did not clearly authorize the President to use the Federal Property and Administrative Services Act (Procurement Act) to impose vaccine requirements on contractors. The Court found that the plaintiffs were likely to succeed in their claim that the President exceeded his authority, and thus issued the injunction while the case proceeds. We will update you as the case continues. If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Jennifer Shoemaker, the author of this piece, here or at (585) 258-2825.

Erie County instituted a mask mandate for all patrons and public-facing staff inside all public locations which was effective at 6:00 a.m. on Tuesday November 23, 2021. The announcement was made by the County Executive who attributed it to the large numbers of recent positive COVID test results. The mandate applies to those age two and older unless they are medically unable to tolerate the masks. The County Executive also stated that further mitigation measures including vaccine mandates, capacity limits and/or shutdowns, may be instituted if the positive case numbers do not decrease. For now, masks are recommended for other non-public work setting where social distancing cannot be maintained. Erie County will tentatively reassess the situation on December 13th but will be monitoring compliance with the new mask mandate. Some specific examples provided in the announcement include hotels, banks, places of worship (including during prayer), players and spectators in hockey rinks, bowling alleys and basketball gyms (including fans and players), fitness centers, barber and hairdresser shops, theaters (movie and live), grocery and other retail stores, public-facing staff and unseated patrons at bars and restaurants. However, venues that have strict vaccination requirements for entrance, including KeyBank Center (Sabres hockey) and Highmark Stadium (Bills football), do not have to require masks. On November 21, 2021, Erie County had a COVID-positive test rate percentage of 9.3%, which was its highest rate since May of 2020, and 91% of its hospital beds were occupied. Monroe County currently has a COVID-positive test rate percentage of approximately 8% and reportedly also has over 90% of its hospital beds full. Accordingly, it is possible that Monroe County will consider a new mandatory mask mandate and/or other measures should those numbers remain the same or worsen. The emergence of the Omicron variant of the COVID virus late last week will only heighten the attention political leaders give to the spread of this disease. 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.

In most commercial litigation in the New York courts, the parties and their lawyers spend much effort and expense in discovery. “Discovery” is the pretrial process of obtaining evidence from the opposing party that is or may be relevant to the parties’ claims and defenses. Like most aspects of litigation, discovery is an adversarial process by which the parties formally demand, and often object to, the disclosure of specified documentary evidence and deposition testimony. The basic rule is that if the requested information is material and necessary to the prosecution or defense of the case, the requesting party is entitled to that information. A party uses discovery to identify all of the other party’s evidence and avoid “trial by ambush.” Lawyers also use discovery to test the strength of the other side’s claims and defenses: Does the other party have in its possession the relevant and admissible evidence needed to prove its case? Related to the obligation to disclose requested and relevant evidence is the obligation to preserve relevant evidence. As a matter of fundamental fairness as well as law, a party to a lawsuit (or, in many instances, a party expecting to be sued or planning to commence a lawsuit) must preserve relevant evidence, both favorable and unfavorable, and disclose that evidence if requested in discovery. The destruction, discarding, alteration or loss of evidence is called “spoliation.” When one party has spoliated evidence, the adversary party may ask the court to impose sanctions. The rules prohibiting spoliation address not only paper documents or physical objects involved in the underlying incident (such as, for example, a vehicle involved in a traffic accident). Parties to a lawsuit often face the risk of sanctions when they delete, discard or alter electronically-stored information (“ESI”). Emails, text messages and many other types of digital data qualify as ESI. A lawyer expecting that a client may sue or be sued, or hired to represent a defendant in a lawsuit, must counsel the client accordingly. A lawyer must communicate with the client to identify all possible data sources and repositories, whether paper or ESI, cause the client to instruct all custodians of the information to hold and not discard that information (a “litigation hold”), and confirm with the client that all litigation holds have been followed. The lawyer will then review the client’s relevant information to identify both favorable and unfavorable evidence, and when the discovery phase of a case begins, respond to the adversary’s discovery requests with the understanding that all relevant evidence has been preserved. Under New York law, spoliation sanctions are appropriate where a party, intentionally or negligently, disposes of crucial items of evidence before its adversary has had an opportunity to inspect them, particularly if that party knows that the evidence might be needed for future litigation. The severity of the sanction imposed by a court will depend in part upon whether or not the spoliating party’s conduct was willful, but more importantly, upon the degree of prejudice suffered by the other side as a result of the loss of important evidence. Where a court finds significant prejudice to the adversary party as a result of the spoliation of evidence, the remedy may be the dismissal of the claims or defenses to which the missing evidence relates. When a court finds the prejudice to the adversary party to be less severe (or can be mitigated in some way), the remedy may be an order precluding the spoliating party from introducing other evidence (including witness testimony) relevant to the issue to which the missing evidence relates, or a jury instruction that directs the jury to presume that had the missing evidence been preserved, it would have been against the spoliating party’s position on that issue. Sometimes a party will destroy or discard relevant evidence without, or before, consulting a lawyer. Consider this hypothetical. A buyer contracts with a seller to acquire a commercial building. Prior to the closing of the transaction, the buyer has conducted an on-site property condition assessment, an on-site appraisal and an on-site environmental inspection. Three years after the closing, the buyer sues the seller, alleging that it had discovered deterioration and mold in the building’s ceiling timbers. In an attempt to get around the settled New York rule of caveat emptor, which bars a buyer from claiming it reasonably relied on a seller’s representations when the buyer had an opportunity to perform, and did perform, its own due diligence, the buyer argues that the seller had intentionally concealed the claimed deterioration and mold with ceiling tiles so that it could not be discovered during the on-site inspections. In the buyer’s deposition, he testifies that the deterioration had been discovered when the buyer removed the ceiling tiles. Further questioning makes clear that the sole evidentiary basis advanced for the claim that the seller had intentionally concealed the condition of the ceiling timbers was the age of the ceiling tiles: the buyer says the ceiling tiles looked like they were new and had been installed in the recent past. The seller knows the ceiling tiles had been installed many years before, has no knowledge of the claimed deterioration, and knows that the removed ceiling tiles will reflect their advanced age. Based on the buyer’s testimony, the seller serves a notice on the buyer to inspect the removed ceiling tiles. However, the buyer responds that they had been discarded after they were removed. In this hypothetical, the discarding of the ceiling tiles has deprived the seller of any opportunity to inspect the ceiling tiles and challenge the buyer’s characterization of the ceiling tiles as new and recently-installed, resulting in significant prejudice to the seller. The buyer’s spoliation of the key evidence in support of its claim of intentional concealment exposes the buyer to the risk of sanctions. 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 Thomas F. Knab the author of this piece, here or at (716) 847-9104.

Governor Kathy Hochul and the New York State Department of Health have announced that approved COVID-19 vaccination religious exemptions for healthcare workers will no longer be allowed as of Monday, November 22, 2021. This determination comes in response to recent court rulings, including the November 1, 2021 decision by the United States Court of Appeals for the Second Circuit. As a practical matter, this means that all personnel working within New York’s hospitals, nursing homes, home care agencies, and hospices (excluding those with a valid medical exemption) are required to be fully vaccinated against COVID-19, without regard to a religious objection. Regardless, facilities should have a process in place to consider reasonable accommodation requests from covered personnel based on sincerely held religious beliefs consistent with applicable federal and state laws, including Title VII of the Civil Rights Act and NYS Human Rights Law. 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.

On November 5, 2021, the Centers for Medicare & Medicaid Services (CMS) published an interim final rule (the “IFC”) establishing COVID-19 vaccination requirements for staff at certain Medicare- and Medicaid-approved facilities. The IFC applies to staff of ambulatory surgical centers, hospices, psychiatric residential treatment facilities, hospitals, long-term and intermediate-care facilities, home health agencies, comprehensive outpatient rehabilitation facilities, critical access hospital, clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services, community mental health centers, home infusion therapy suppliers, rural health clinics and federally qualified health centers, and end-stage renal disease facilities. The IFC does not directly apply to other healthcare entities not listed above. Staff includes “facility employees; licensed practitioners; students, trainees, and volunteers; and individuals who provide care, treatment, or other services for the facility and/or its patients, under contract or other arrangement.” The IFC outlines phases for compliance with the new vaccination requirement. Phase 1, which is effective on December 6, 2021, includes the requirement that all staff at certain Medicare- and Medicaid-approved facilities received the first dose (or only dose, if applicable) of a COVID-19 vaccination, or have requested or been granted an exemption to the requirements. Phase 2, which takes effect on January 4, 2022, requires that the first vaccination be completed, and that staff are fully vaccinated (i.e., with a second dose, as applicable), except for those staff that have been granted an exemption or have been forced to delay for an approved reason. The IFC also requires facilities to establish and implement a process by which staff can request an exemption. Potential exemptions under the IFC may include allergies, documented medical conditions, or religious beliefs. To ensure compliance with the vaccination requirements of the IFC, CMS also requires facilities to track and securely document vaccination status of all staff. Vaccination exemption requests and the outcome must also be documented. Approved facilities must also develop a process for ensuring that they will follow nationally recognized infection prevention and control guidelines to mitigate the spread of COVID-19, particularly for those staff members that do not receive a vaccination due to an approved exemption. State surveyors will assess compliance with the IFC. Facilities that are cited for noncompliance may be subject to penalties depending on the nature of the noncompliance, but may include civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement. CMS is set to issue interpretive guidelines on enforcement. If you have any questions regarding the latest CMS IFC, or if you have any other Health Care or Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ericka Elliott, the author of this piece, here or at (585) 258-2830.

In response to a lawsuit filed by a group of plaintiffs, including the Attorney General of Louisiana, a federal appeals court in New Orleans put a pause on President Biden’s planned vaccination requirement for all private companies in the United States with more than 100 employees. The court wrote that there were statutory and constitutional concerns with the mandate and, therefore, a deeper analysis of the policy is needed. The Biden administration has stated publicly that it is confident that the policy will withstand constitutional scrutiny and has until Monday to submit its response to the court. We will continue to provide updates on the latest developments on this issue. If you have any questions regarding this legal alert, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Alina Nadir , the author of this piece, here or at (585) 258-2805.

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.

As we have reported on earlier this year, energy policy and climate change focus have taken a dramatic turn under the Biden Administration. Hours after the oath of office the President signed an Executive Order declaring climate change a crisis, initiated a number of climate-based actions and halted construction of the Keystone XL pipeline. Recent national and international pipeline and energy developments have led to increased scrutiny of that decision. The “Executive Order on Protecting Public Health and the Environment and restoring Science to Tackle the Climate Crisis” issued January 20, 2021 was expansive and significantly impacts US environmental policy, business and consumers. Among other things, the Executive Order states that “[i]t is, therefore, the policy of my Administration to listen to the science; to improve public health and protect our environment; …to bolster resilience to the impacts of climate change.” In one of the most visible actions, the Executive Order revoked the March 2019 Presidential permit granted to Trans Canada Keystone Pipeline LP to construct the Keystone XL pipeline. The Order was notable in the findings regarding the pipeline, specifically that “[t]he Keystone XL pipeline disserves the US national interest. The United States and the world face a climate crisis. That crisis must be met with action on a scale and at a speed commensurate with the need to avoid setting the world on a dangerous, potentially catastrophic, climate trajectory.” Further, that “[l]eaving the Keystone XL pipeline permit in place would not be consistent with my Administration’s economic and climate imperatives.” On June 9, 2021, TC Energy Corporation, the pipeline developer, issued a statement that it was terminating the project after the Biden Executive Order. The Administration’s Order to kill the pipeline project eliminated 11,000 United States’ jobs associated with the project, including an approximately 8,000 union jobs. The pipeline, which began permitting under the Obama administration and received presidential approval from the Trump Administration, was slated to transfer over 800,000 barrels of Canadian oil a day from Alberta, through Montana, South Dakota, and Nebraska to US refineries on the Gulf Coast. Local, regional, and even national media have noted the ripple effect on local businesses, suppliers, restaurants and communities in an around the pipeline route. In South Dakota alone, a few pumping stations for the project were already built, the route was laid out and activities for construction were in progress. The Order also placed a moratorium on federal oil and gas leases in the Artic National Refuge. A study by the American Petroleum Institute indicated that a long-term ban on federal energy leases will have major impacts. Notably, a reduction of US GDP of $700 billion by 2030, a loss of nearly one million jobs by 2022, and an increase of US oil imports from foreign sources by 2 million barrels a day by 2030. Similarly, natural gas exports from the US would decrease by up to 800 billion cubic feet by 2030. The projected increase of household energy costs of $19 billion by 2030. Since issuance of the Executive Order there have been three other significant pipeline matters affecting the US energy supply and global access to petroleum resources. On May 7, the Colonial Pipeline from Houston, Texas to New York which provides 3 million of barrels of fuel per day to the east coast was shut down after a ransomware attack. The Colonial Pipeline provides about 45% of the fuel to the east coast of the US. The shutdown lasted six days and caused gasoline shortages and lines across many areas of the east coast. The Biden administration then lifted sanctions against the Nord Stream 2 natural gas pipeline between Russia and Germany. The pipeline is projected to allow Russia to generate an additional $3.3 billion to its annual GDP. Hence, rather than encouraging Germany to import US natural gas, Germany and other European nations will be reliant on Russia’s supply. The position is contrary to a bi-partisan set of sanctions passed by Congress which prohibited the Russia pipeline from being constructed. A third pipeline issue also occurred this week, when the Army Corps of Engineers indicated it will prepare an environmental impact statement on the Enbridge Envoy pipeline tunnel proposal to span the Mackinac Straits between Lake Michigan and Lake Superior. The 645mile pipeline has been in existence for 65 years but has recently been ordered to shut down by Michigan Governor Whitmer. Although the Biden Administration’s jurisdiction is limited to the proposed tunnel crossing, it appears to be another instance where the federal government intends to create obstacles for fossil fuel supplies reaching the US. The pipeline owner has announced that the requirement of an environmental impact statement rather than environmental assessment will tack significantly more time onto the permit process that must be completed prior to the start of construction. The tunnel project will re-house a five mile section of the existing line that runs from Wisconsin to Ontario. Prior to the Corps’ announcement, Enbridge planned on starting construction this year. With the loss of the Keystone XL supply, recent disruptions to U.S. fuel supplies via the Colonial Pipeline shutdown and challenges to other pipeline sources, there are significant questions as to what this will do to US energy supplies and independence that was growing under the Trump administration. Energy independence for the country and development of low cost sources under the past administration seems like a positive objective for US independence, security and economic growth. Additionally, growth of US energy production under the prior administration prevented US businesses and consumers from being subject to price and political fluctuations from international sources. The difference in energy policies is being reflected in fuel prices. In December 2020, the price of US gasoline averaged $2.30 per gallon and global crude oil prices were below $50 per barrel during most of 2020. According to AAA’s gas price index, the current national average fuel price is $3.06 per gallon. In New York, the average cost of Regular gas one year ago was $2.22 per gallon, today it is $3.13 per gallon. Likewise, the cost of diesel fuel in New York trucks and commercial transportation has increased from an average of $2.83 last year to $3.29 per gallon. Hence, gasoline has increased by approximately $.86 per gallon and diesel by $.46 per gallon in a year. Interestingly, the AAA index reveals that the highest recorded prices for regular gas ($4.30/gallon) and diesel ($5.13/gallon) both occurred in July and August 2008, under the Obama-Biden Administration. Favoring international pipelines over importation of petroleum to the United States that would benefit US consumers, businesses, and families, and disrupting additional pipeline fuel sources, seems like a curious position at best. Simply pointing to global climate change to reduce national energy supplies while the price of gas, diesel fuel, food and goods increases dramatically does not seem to serve the interests of the country. For additional information about the issues discussed above, or if you have any other Environmental Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or George S. Van Nest , the author of this piece, here or at (716) 847-9105.

On October 6, the Biden Administration announced additional steps to roll back regulatory reforms instituted by the Trump Administration. The Council on Environmental Quality (CEQ) announced that it plans to restore three central provisions of National Environmental Policy Act (NEPA) regulations to aid “the Biden Administration’s whole-of-government approach to tackling the climate crisis and confronting environmental injustice.” The CEQ’s Phase I proposed rule is intended to roll back 2020 regulatory changes intended to streamline environmental review processes. NEPA review is a required environmental impact review for federal projects such as highways, train stations, bridges, etc. The process can be time-consuming, costly, and rife with litigation opportunities for opponents to challenge infrastructure projects. Although environmental impact review is an important element of projects and is regularly undertaken on local projects under the State Environmental Quality Review Act (SEQR), since NEPA was enacted in 1970, the time to construct federal projects has expanded substantially. On average, NEPA review takes about four and a half years and thousands of pages of documents. The Trump Administration spent three years reviewing NEPA procedures and potential reforms. In 2020, the administration adopted reforms that required that all NEPA reviews be completed within two years and limited the scope of the reports. The Phase I rule would modify NEPA regulations in three key areas. First, federal agencies would be required to evaluate all relevant environmental impacts in their decisions which includes direct, indirect, and cumulative impacts of a proposed action. Hence, the Biden Administration is trying to ensure that it’s climate change agenda and environmental justice are enforced by considering those indirect impacts in federal projects. Second, federal agencies would have flexibility to consider the “purpose and need” of projects based on multiple factors and to work with project applicants and communities to mitigate impacts based on consideration of alternatives. Finally, the CEQ proposal would establish NEPA regulations as a baseline requirement for federal agencies to meet but allow agencies to adjust their NEPA procedures to meet specific needs of the agency. The initial round of regulatory proposals is subject to public comment through November 21, 2021. CEQ is working on a more comprehensive set of regulatory changes, known as Phase 2 changes, that will address a variety of topics in the review process, including climate change, environmental justice, and review procedures. Future rule changes are also expected to address exemptions from NEPA which were part of the Trump Administration’s 2020 amendments but not addressed in the Phase I changes. The changes will inherently increase the time-period and complexity of environmental review as agencies are required to consider indirect impacts such as climate change. The proposed changes are not being universally accepted by contractors, consultants, and those working to complete federal projects. For example, the Associated General Contractors has questioned “[h]ow can we Build Back Better if no projects get built in our lifetimes?” However, environmental groups are pleased with the proposal to scrap Trump Administration regulatory reforms. The Environmental Defense Fund, which has sued to challenge Trump’s rule changes, is happy that the rules “clarifies that the agency regulations are a floor, not a ceiling.” One interesting aspect is the extent to which the proposed rules will negatively impact the Biden Administration’s climate and clean energy agenda. As with any federal project, federal clean energy projects need to go through NEPA review. Hence, despite Biden’s proposed Clean Electricity Standard that would require zero carbon emissions from power production by 2035, it is unclear how the infrastructure to produce zero emission energy will be built in time. Projects of all types will be slowed down by expanded NEPA review. Thus, despite the push by environmental groups to roll back the Trump Administration regulatory reforms, in many respects the revisions would have made it more efficient for clean energy projects to be constructed. In fact, Mario Loyola from the Competitive Enterprise Institute, and a former director at CEQ that worked on the 2020 reforms, noted that while “[p]owerful environmental groups want to go back to the pre-Trump rules, but the renewable energy sector knows that under the old rules they can’t get a tenth of the permits they need to meet the administration’s clean energy goals.” While regulatory updates are made with new administrations, rather than take a reflexive approach and overturn all actions from a prior presidency, perhaps a thorough review of regulatory issues would benefit the country. For additional information about the issues discussed above, or if you have any other Environmental Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or George S. Van Nest , the author of this piece, here or at (716) 847-9105.

The NY State Department of Labor issued new guidance regarding an employer’s ability to test an employee for marijuana. NY Employers are no longer allowed to test an employee for marijuana in most cases or take adverse action against an employee for the use of recreational marijuana. Simply observing signs that an employee may use marijuana is insufficient to warrant any adverse action. This is true even if an employer suspects an employee is under the influence. For example, if an employee smells like marijuana at work, an employer cannot take any adverse action based on that alone. Only where “articulable symptoms of impairment” are observed may an employer consider taking action against an employee for the use of marijuana. These symptoms must be objective – there has to be evidence that the employee’s performance is suffering or that there is a safety risk to the workplace. Employers can still have policies in place prohibiting marijuana usage during work hours, including any break periods or on-call periods. Similarly, marijuana possession can still be prohibited on company property, or in company property, such as a company vehicle. (Under NY Labor Law, a remote employee working from a private residence is not considered to be working at a “worksite.”) Any employer policies banning the use of marijuana outside of the workplace must be revised. An individual’s personal marijuana usage cannot be used as a reason to deny or terminate employment. The only exception to this is if a particular position is subject to state or federal guidelines that make abstaining from marijuana usage a condition of employment. Examples of this are commercial vehicle drivers and most police officers. 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 Alina Nadir , the author of this piece, here or at (585) 258-2805.

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.

Underberg & Kessler LLP is proud to share that Justin Alexander, partner, has been recognized as an "Up and Coming Attorney" of The Daily Record and the Rochester Business Journal’s 2021 Legal Excellence Awards. Legal Excellence pays tribute to all the ways legal professionals work to make the Greater Rochester community stronger. "This year's Legal Excellence recipients work tirelessly to uphold the highest legal standards and improve communities throughout Western New York. They are actively engaged in the community and mentor other leaders as well," said Suzanne Fischer-Huettner, Senior Group Publisher of The Daily Record and Rochester Business Journal. "They perform vital services in the community, and we are honored to recognize them." On November 15th, Justin and the other winners will be honored during an online celebration. For more on this, click HERE.