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New York’s COVID-19 vaccine mandate has not been blocked, despite temporary court order

Last week a federal judge in Upstate New York ruled that part of New York State’s COVID-19 vaccine mandate for healthcare workers had been blocked. In August, the state Department of Health issued an order that would require all staff to be vaccinated by September 27, 2021. 

First Amendment Attorney Jared Cook provided an explanation outlining why initial reporting on that topic was flawed. He also spoke to the limited scope of the ‘religious exemption’ which had been cited numerous times by opponents of a vaccine mandate. 

Cook explained that the initial order by the state Department of Health had two limited exemptions. There was a health exemption and religious exemption. He said the word ‘exemption’ is misleading for legal purposes. “It’s not an unconditional exemption,” he explained. “It’s a reasonable accommodation. If you fall into an exemption, you might not have to get the vaccine, but you’d likely have to do things like get tested regularly, mask, distance, etc. But if these accommodations would impose an undue burden on the employer’s business, then you’re out of luck, even if you fall into the exemption.”

Shortly after that initial vaccine mandate was released by the state Department of health — former Governor Andrew Cuomo resigned — giving way to Governor Kathy Hochul who pushed for more aggressive measures. The vaccine mandate that was released after was similar to the original but eliminated the religious exemption and only provided an accommodation for health reasons. This one also greatly expanded the scope of who would be covered under the mandate. Now it wasn’t just hospital workers or nursing home staff — it was most people in the healthcare setting.

Non-hospital and nursing home facilities must have all employees with a dose of the vaccine by October 7.

A religious freedom and advocacy group filed a lawsuit on behalf of healthcare workers who challenged the lack of religious accommodation in the new order. “Importantly, the lawsuit doesn’t challenge the mandate generally, it doesn’t ask the court to find the DOH doesn’t have the power to require employers to require vaccines,” Cook explained. “It only challenges the lack of a religious accommodation under the new order. It does so on three grounds: (1) they say allowing a medical exemption but not a religious exemption constitutes targeting impermissibly targeting religion under the first amendment, (2) they say the order is preempted by Title VII, which requires employers to provide a reasonable accommodation (that is, an accommodation that doesn’t create more than a minimal burden on the employer’s business) to work rules that burden employee’s religious beliefs, and (3) they say that by allowing the medical exemption but not the health exemption, the order violates equal protection b/c there’s no rational basis to treat religious reasons to not get vaccinated differently from medical reasons.”

The plaintiffs moved for a temporary restraining order and preliminary injunction. Both are relatively short-lived orders that preserve existing regulations as the court moves through the legal process. The temporary restraining order lasts until September 28. That’s when the court will hear arguments on whether to enter a preliminary injunction. 

“It has virtually no precedential effect,” Cook explained. “It’s just a placeholder to keep the status quo. Perhaps even more importantly, the order doesn’t block the vaccine mandate generally. It essentially only blocks the state from enforcing the requirement that employers categorically deny requests for religious accommodation.”

As result, Cook says, the outcome is straight forward. “For the vast majority of employees of covered employers, the mandate is in full effect even with this order in place,” he concluded.

The Governor was asked in detail about the mandate and its effect on hospitals and healthcare across the state.

“I’m not aware of a sanctioned religious exemption from any organized religion,” Governor Hochul said on Wednesday. “In fact, they are encouraging opposite. They’re encouraging their members, everybody from the pope down is encouraging people to vaccinate. So people will simply choose.” 

“We’ve been alerted that there’s a hospital in Lewis County that may not be able to deliver babies,” she added. “I checked. Every baby that is supposed to be delivered in Lewis County has been properly delivered. I’m not going to let this be a problem for the state of New York. I will ensure that we have the resources. And people are required to have temporary staffing plans, anyhow. Hospitals are required to have a game plan.”