The Volokh Conspiracy
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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 does not require an employer in all cases to "accommodate" an employee by necessarily granting them an "exemption," the statute does require employers to entertain requests for religious accommodations and to "reasonably" accommodate those requests absent a showing of undue hardship….
The court also concluded that the plaintiffs were likely entitled to an exemption under the Free Exercise Clause as well:
[T]he Free Exercise Clause "protect[s] religious observers against unequal treatment" and against "laws that impose special disabilities on the basis of religious status." However, the Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." …
Upon review, plaintiffs have established at this early stage of the litigation that § 2.61 is not a neutral law. As the Supreme Court has explained, "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history" are all relevant circumstantial evidence in detecting a lack of neutrality.
Zucker's August 18 Order, which was imposed on a summary basis, included medical and religious exemptions to COVID-19 vaccination. The Health Council's adoption of § 2.61, which was imposed on a similar summary basis just eight days later, amended the vaccination mandate to eliminate the religious exemption. This intentional change in language is the kind of "religious gerrymander" that triggers heightened scrutiny.
Plaintiffs have also established at this early stage of the litigation that § 2.61 is not generally applicable. A law is "not generally applicable if it is substantially underinclusive such that it regulates religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it."
Section 2.61's regulatory impact statement claims that "[u]nvaccinated personnel in [healthcare] settings have an unacceptably high risk of both acquiring COVID-19 and transmitting the virus to colleagues and/or vulnerable patients or residents, exacerbating staffing shortages, and causing unacceptably high risk of complications."
But as plaintiffs point out, the medical exemption that remains in the current iteration of the State's vaccine mandate expressly accepts this "unacceptable" risk for a non-zero segment of healthcare workers. Although defendants claim that they expect the number of people in need of a medical exemption to be low, the Supreme Court has recently emphasized that "[c]omparability is concerned with the risks various activities pose," not the reasons for which they are undertaken. Thus, absent further factual development the Court cannot conclude that § 2.61 satisfies the requirement of "general applicability."
Finally, plaintiffs have established at this early stage of the litigation that § 2.61 is likely to fail strict scrutiny. To satisfy strict scrutiny, defendants must show that the challenged law advances "interests of the highest order" and is "narrowly tailored" to achieve those interests.
"Put another way, so long as the government can achieve its interests in a manner that does not burden religion, it must do so." …
"Stemming the spread of COVID-19 is unquestionably a compelling interest." … However, [defendants] have failed to establish that § 2.61—and in particular, its intentional omission of a religious exemption—is narrowly tailored to address that public health concern.
"Narrow tailoring requires the government to demonstrate that a policy is the 'least restrictive means' of achieving its objective." The asserted justification "must be genuine, not hypothesized or invented post hoc in response to litigation." "And the government must show that it 'seriously undertook to address the problem with less intrusive tools readily available to it.'"
Defendants have not made this showing. According to the "alternative approaches" component of § 2.61's regulatory impact statement, the Health Council considered two alternatives: (1) daily testing before each shift; and
(2) wearing appropriately fitted N95 face masks at all times.
However, there is no adequate explanation from defendants about why the "reasonable accommodation" that must be extended to a medically exempt healthcare worker under § 2.61 could not similarly be extended to a healthcare worker with a sincere religious objection.
Nor have defendants explained why they chose to depart from similar healthcare vaccination mandates issued in other jurisdictions that include the kind of religious exemption that was originally present in the August 18 Order. Pl.'s Mem. at 17 (citing Illinois and California COVID-19 regulations that include religious exemption language); see also Roman Catholic Diocese of Brooklyn (finding tailoring requirement unsatisfied where, inter alia, the challenged restriction was "much tighter than those adopted by many other jurisdictions hard-hit by the pandemic").
In sum, "[t]o meet the requirement of narrow tailoring, the government must demonstrate that alternative measures imposing lesser burdens on religious liberty would fail to achieve the government's interests, not simply that the chosen route was easier." Defendants have not done so….
The court closed, in a discussion that seems to be tailored to the Title VII analysis (though the court doesn't expressly so limit it):
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 ….
To reiterate, these conclusions have nothing to do with how an individual employer should handle an individual employee's religious objection to a workplace vaccination requirement. But they have everything to do with the proper division of federal and state power….
And here's the key part of the court's injunction:
Defendants, their officers, agents, employees, attorneys and successors in office, and all other persons in active concert or participation with them, are preliminarily ENJOINED from enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with § 2.61 such that: … Section 2.61 is suspended in operation to the extent that the Department of Health is barred from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination or that they revoke any exemptions employers already granted before § 2.61 issued ….