On November 4, 2021, in a consolidated appeal, the U.S. Court of Appeals for the Second Circuit upheld New York Department of Health’s rule requiring healthcare facilities to ensure that certain employees are vaccinated against COVID-19. We the Patriots USA, Inc. v. Hochul, Nos. 21-2179 and 21-2566, 2021 WL 5121983, *1-2 (2nd Cir. Nov. 4, 2021). (The appellate opinion can be accessed here.)
In upholding the mandate, the Second Circuit reversed the U.S. District Court for the Northern District of New York and affirmed the U.S. District Court for the Eastern District of New York. The Northern District of New York had enjoined the mandate to the extent that it prevented healthcare workers from being eligible for an exemption based on religious belief: Dr. A. v. Hochul, No. 21-cv-1009, 2021 WL 4734404 (N.D.N.Y. Oct.12, 2021). Meanwhile, the Eastern District of New York denied the plaintiffs’ request for preliminary injunction: Order, We the Patriots USA, Inc. v. Hochul, No. 21-cv-4954 (E.D.N.Y. Sept. 12, 2021).
The vaccine mandate was adopted in response to rapidly rising COVID-19 infection rates associated with the Delta variant. The purpose of the mandate was to preserve the health of healthcare workers and to keep patients and the public safe from COVID-19.
The mandate included a medical exemption, but no religious-based exemption was included. As such, the mandate permitted but did not require employers to make religious accommodations. In both cases, the plaintiffs challenged the Rule’s omission of a religious exemption claiming that the mandate was unconstitutional and violated the Constitution’s First Amendment, Supremacy Clause, and Fourteenth Amendment. We the Patriots, 2021 WL 5121983, at *1-2.
The Second Circuit found that the plaintiffs were not likely to succeed on the merits of any of their claims as to entitle them to a preliminary injunction. Id. at *7-18. First, the Court found that the mandate did not violate the plaintiffs’ First Amendment right to the free exercise of religion. In the Court’s view, the mandate easily satisfied rational basis review that applied because the mandate was a facially neutral rule of general applicability. Id. at *7-15. Second, the Court held that the mandate did not require employers to violate Title VII of the Civil Rights Act and therefore did not contravene the Supremacy Clause. The Court found that, although the mandate barred employers from granting religious exemptions, it did not prohibit religious accommodations, such as giving religious objectors assignments with which they would not pose a risk to other personnel, patients, or residents—like telemedicine. Id. at *17. Third, the mandate did not violate the plaintiffs’ fundamental rights to privacy, medical freedom, or bodily autonomy under the Fourteenth Amendment. As consistently recognized by the courts, “the Constitution embodies no fundamental right that in and of itself would render vaccine requirements imposed in the public interest, in the face of a public health emergency, unconstitutional.” Id. at *18.
Additionally, the Second Circuit held that the plaintiffs failed to establish that they suffered irreparable harm as a result of the mandate, since there was no constitutional violation and the alleged harm could be remedied through an award of damages. The Court acknowledged, though, that, although damages could be sought, “it [was] not at all clear who would pay them.” Id. at *19.
Finally, the Second Circuit held that the plaintiffs failed to demonstrate that the public interest weighed in favor of enjoining enforcement of the mandate as to warrant a preliminary injunction. The Court recognized that, although hospitals have navigated the pandemic even before vaccines were authorized, healthcare facilities experienced an increased strain within the past year. The strain includes a “‘parallel pandemic’ of burnout, anxiety, depression, and other mental health issues” experienced by hospital workers. Id. at *20. “Researchers have found that this phenomenon stems from ‘a perceived lack of control, treatment of other healthcare workers for COVID-19, and uncertainty about colleagues’ infection status,’ and it has been accompanied by increased rates of resignation and retirement as well as incidents of self-harm.” Id.
The Second Circuit even went as far as to state that “private healthcare institutions may [also] impose vaccination requirements of their own, subject to any relevant limitations imposed by Title VII and other applicable law.” Id. at *15. As recognized by the Court, vaccination may be “a condition of employment in the healthcare field.” Id. at *18.
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