Court Blocks N.Y. Rule Categorically Denying Religious Exemptions from Healthcare Workers COVID Immunization Mandate
From Dr. A. v. Hochul, decided yesterday (Oct. 12) by Judge David Hurd (N.D.N.Y.):
On August 26, 2021, the New York State Department of Health adopted an emergency regulation [§ 2.61] that required most healthcare workers to be vaccinated against COVID-19 within the next thirty days. As relevant here, § 2.61 eliminated a religious exemption included in the first iteration of this mandate….
Plaintiffs hold the sincere religious belief that they “cannot consent to be inoculated … with vaccines that were tested, developed or produced with fetal cell[ ] line[s] derived from procured abortions.” According to plaintiffs, the COVID-19 vaccines that are currently available violate these sincere religious beliefs “because they all employ fetal cell lines derived from procured abortion in testing, development or production.” See also Rausch-Phung Decl. ¶¶ 35–45 (acknowledging that fetal cell lines are widely used in pharmaceutical development and were used in the testing and production of current COVID-19 vaccines).
The court concluded that § 2.61 is preempted by Title VII’s requirement that employers (public and private) “reasonably accommodate” employees’ religious practices, so long as the accommodation can be done “without undue hardship on the … employer’s business”:
“Title VII does not demand mere neutrality with regard to religious practices …. [r]ather, it gives them favored treatment.” Thus, under certain circumstances, Title VII “requires otherwise-neutral policies to give way to the need for an accommodation.”
Upon review, plaintiffs have established at this early stage of the litigation that they are likely to succeed on the merits of this [preemption] claim…. The plain terms of § 2.61 do not make room for “covered entities” to consider requests for reasonable religious accommodations. Instead, § 2.61 obligates all covered entities to “continuously require personnel to be fully vaccinated against COVID-19.” And “personnel” is defined broadly, sweeping in “all persons employed or affiliated with a covered entity, whether paid or unpaid … who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease.”
Plaintiffs allege that some of their employers have revoked existing religious exemptions and/or religious accommodations by pointing to the State’s adoption of § 2.61. Plaintiffs also allege that some of their employers have refused to consider exemption or accommodation requests because of § 2.61. Although Title VII certainly
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