Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In a November 4, 2021 opinion, the U.S. Court of Appeals for the Second Circuit upheld New York’s vaccine mandate for healthcare workers, rejecting arguments advanced by healthcare professionals in two different district court cases that the mandate’s failure to provide for religious exemptions violated their religious freedoms and should be enjoined.
As we previously reported, New York State Department of Health’s Public Health and Health Planning Council unanimously approved an emergency regulation requiring vaccination for all covered personnel employed in hospitals, nursing homes, and other identified healthcare entities.1 This mandate took effect on August 26, 2021, and required covered personnel of hospitals and nursing homes to receive their first COVID-19 vaccine by September 27, 2021, while those employed by other covered facilities had until October 7, 2021 to receive their first dose.2 Under the mandate, covered personnel are persons who, if infected with COVID-19, could potentially expose other covered personnel, patients or residents to the disease. It should be noted that the mandate, while not providing for a religious exemption, does permit a medical exemption, as discussed below.
Recent Court Cases
The mandate was quickly challenged in two federal court lawsuits brought by health care workers who claimed it violates the constitutional rights of healthcare workers who object to the COVID-19 vaccine because of their religious beliefs. Plaintiffs in both lawsuits sought preliminary injunctions to stop the Department of Health from enforcing the mandate. The Eastern District in Brooklyn rejected the bid for a preliminary injunction, while the Northern District in Utica granted a state-wide preliminary injunction, which temporarily barred the Department of Health from requiring employers to deny requests for religious exemptions to the mandate or to revoke any exemptions that were already granted.
Both cases were immediately appealed to the Second Circuit Court of Appeals. On October 29, 2021, a three-judge panel vacated the Northern District’s preliminary injunction and affirmed the Eastern District’s denial, with its reasoning laid out in a November 4, 2021, 50-page opinion. In reaching its decision, the Second Circuit distinguished between an exemption from the vaccination requirement and an alternative accommodation, finding it “fully possible for employers to comply with both Section 2.61 and Title VII.” The Second Circuit stated that employees can still request “a religious accommodation allowing them to continue working consistent with the [mandate], while avoiding the vaccination requirement.” Given that, on its face, Section 2.61 does not prevent employers from considering alternative accommodations for religious objectors, the court declined to award the extraordinary relief of a preliminary injunction and instead sent the cases back to the lower courts for further review of the plaintiffs’ claims.
Recent Federal and State Agency Guidance
OSHA Emergency Temporary Standard – On November 4, 2021, the federal Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) requiring employers with 100 or more employees to ensure their workers are fully vaccinated against COVID-19 or submit to weekly testing, effective January 4, 2022. Although the ETS permits employers to grant religious and medical exemptions, employees with exemptions must submit to at least once-weekly testing and wear face coverings. The ETS rule does not apply to healthcare providers covered by the CMS rule discussed below or the OSHA Healthcare ETS that was issued on June 10, 2021.
CMS Interim Final Rule – Additionally, on November 4, 2021, the Centers for Medicare and Medicaid Services (CMS) issued an interim final rule requiring all personnel employed by CMS-regulated healthcare services, support or supplier facilities to be fully vaccinated by January 4, 2022. The CMS rule allows for religious exemptions, and explicitly preempts inconsistent state or local laws, which may give rise to further legal challenges to New York’s mandate.
NY DOH FAQs – In an effort to clarify the scope of the mandate, the Department of Health has issued Frequently Asked Questions (FAQs) which, among other things, explain what constitutes a “covered entity” and “covered personnel.” On November 8, 2021, following the Second Circuit’s opinion discussed above, the Department of Health updated the FAQs to confirm that covered entities may not permit unvaccinated employees who do not have an approved medical exemption to remain in these “personnel” positions. However, covered entities should follow applicable laws concerning requests for religious accommodations based on sincerely held religious beliefs.
Unless and until there is further action from the courts, the mandate is in effect in the same form as it was issued on August 26, 2021, i.e., with no provision for religious exemptions. This means that employers are not required to consider, and are not permitted to grant, a request for religious exemption to the vaccination requirement from covered personnel. Further, New York healthcare employers may not permit covered personnel to work in their position with a religious exemption even with masking, testing, and/or other safety measures in place, which is permitted for employees who have been granted medical exemptions. However, as contemplated by the Second Circuit and explained in the Department of Health’s FAQs, covered entities should nonetheless follow applicable federal, state and local laws and guidance. This contemplates an employer’s engaging in an interactive process with personnel who request a religious accommodation to determine whether there are any reasonable accommodations outside of a “personnel” role that can be granted without posing an undue hardship, such as telehealth or other remote work.
For the sake of clarifying this somewhat confusing interplay of federal and state laws, regulations and guidance, employers may still consider and grant requests for medical exemptions from covered personnel who meet one of the limited circumstances identified by the CDC, i.e., presenting a contraindication or precaution to COVID-19 vaccination. Such exemptions are intended to last only for as long as the vaccine presents a danger to the employee’s health, and that timeframe should be documented in the medical portion of the employee’s personnel file. During the period of medical exemption, covered personnel may still work in “personnel” roles while wearing a mask and following applicable recommended safety practices, which do not currently require COVID-19 testing.
This departure in treatment of those requesting medical exemptions compared to those with religious-based requests was described by the Second Circuit as consistent with the overall objectives of Rule 2.61 and the medical profession. Specifically, the objective of Section 2.61 is to protect the health and safety of patients and healthcare professionals, which may not be accomplished if personnel with a known risk of adverse reaction were required to take the vaccine. Further, because the number of requests for medical exemptions has proven to be far less than the number of requests for religious exemptions, the Second Circuit reasoned that allowing a limited number of unvaccinated persons with medical exemptions to work in patient care with adequate protection would not endanger the health or safety of patients or personnel. In this regard, the mandate requires covered entities to maintain detailed records, including the numbers and percentages of medical exemptions granted, covered personnel who have been vaccinated, and total covered personnel, which will highlight any instances of unvaccinated employees in covered roles who do not possess a medical exemption.
The Eastern District and Northern District cases both remain active, and further challenges to the mandate are expected. The plaintiffs in the Eastern District case have submitted an emergency application to the U.S. Supreme Court to stay enforcement of the mandate while they file an appeal. The New York defendants opposed the emergency application on November 10, 2021, arguing that the plaintiffs have not made a strong showing of likely success on the merits of their intended appeal. A group of 14 religious and civil rights organizations filed an amicus brief in opposition to the emergency application in which they argue that the right to practice one’s faith is precious but was never intended to override public health and safety measures. Another group of 29 public health associations and scholars of public health also filed an amicus brief opposing the application by arguing that religious exemptions to COVID-19 vaccination, if required, will broadly undermine the public health. The Supreme Court is expected to issue a decision quickly and we will continue to follow these developments.
Notably, the Supreme Court recently denied a similar application concerning Maine’s healthcare vaccine mandate which, like New York’s, does not specifically provide for religious exemptions. While beyond the scope of this ASAP and covered in other Littler articles,3 there have been multiple legal challenges to the OSHA ETS rules.
Because of the emergency nature under which it was issued, the mandate is initially effective for 90 days, until November 24, 2021, and can be renewed, modified, or noticed for proposed rule-making for permanent adoption. We will continue to monitor any activity in this regard. For now, covered entities should continue to take steps to comply with the mandate, including requiring vaccinations for all covered personnel who are not medically exempt, and maintaining proper records related to vaccination and exemptions. Employers should also remain mindful of obligations under other applicable laws, including Title VII and the New York State Human Rights Law, to consider and, where appropriate, provide religious accommodations consistent with the mandate. Employers are encouraged to speak with employment counsel regarding these rapidly changing vaccination requirements.
1 See 10 N.Y.C.R.R. § 2.61 (Aug. 26, 2021) (referred to herein as “Section 2.61” or the “mandate”).
2 A similar regulation has since been issued by New York’s Office of Mental Health (OMH) and requires covered personnel who work in psychiatric hospitals in the OMH network and the specialty hospital certified by Office for People with Developmental Disabilities to begin vaccination by November 1, 2021.
3 See, e.g., Jim Paretti and Rachel E. Childers, Alabama Joins Pushback on Vaccine Mandates, Littler ASAP (Nov. 8, 2021); Elizabeth A. Lalik and Lauren M. Bridenbaugh, Some States Push Back on Governmental and Private Employer Vaccine Mandates, Littler Insight (Nov. 4, 2021); Additional Pushback on Governmental and Private Employer Vaccine Mandates by Certain States, Littler ASAP (Nov. 9, 2021).