Previously, a Northern Disrict of New York federal district judge issued a TRO against New York State from enforcing its COVID vaccine mandate for all New York state health care workers. The original emergency order issued by the Health Commission had the religious exemption in it, in addition to the medical exemption. But the subsequent order issued by the health department removed the religious exemption. The failure to provide a religious exemption was the basis of the injunction lawsuit. The district judge granted the TRO back in September. Today, the judge granted a preliminary injunction stoping the state from implementing the vaccine vaccine order pending hearing/trial on the merits.

Here is the decision. Of course, you will all love it.

Dr. A v. Hochul NDNY Injunction Order(2)

The court applied the strict scrutiny test and held that the state failed to meet that test. Among the reasons was that the order allowed exemption on medical grounds and did not explain why there couldn’t also be a religious exemption. In legal terms, that meant it couldn’t show that the order was the least restrictive means to achieve the compelling state interest. The court also pointed out that Commissioner Zucker’s prior order had the religious exemption in it. So what changed in the eight days between the two orders?

The court engaged in an extensive discussion of the First Amendment Free exercise clause and its relationship to Title VII dealing with employment discrimination based on religion. Honestly, I’m going to have to read that part more than the two times I already read it to figure it out.

I am not quite prepared to say that an employee COVID vaccine mandate has to have a religious exemption/accommodation, either under the Free exercise clause of the First Amendment or Title VII which prohibits discrimination against religious practices by employers. My hesitancy has two reasons: First, I think what might have done New York in was the fact that the original order had it, and it seems unreasonable and arbitrary to remove it in an order issued by the health department eight days later.

Second and more importantly, a Brooklyn federal judge reached the opposite result on the same emergency order. That decision, you will recall, was stayed by the Second Circuit recently. Oral argument on the appeal of the denial of the injunction will be heard by the Second Circuit on Thursday. Being a higher court reviewing the same emergency order, the Second Circuit’s decision should be controlling.

But for sure, that the Second Circuit stayed the emergency order pending the oral argument and specifically acknowledged the TRO in this case, plus the preliminary injunction in this Northern District case is a promising sign to those NY health care practitioners who want a right to seek a religious accommodation to the vaccine mandate. But more than that, it’s tough to say. But it could be that not to have the possibility of a religious exemption/accommodation may be too much even for an inherently conservative judiciary. And if so, well, that might open up all kinds of possibilities down the road for lawyers and lay folk, beyond New York and maybe even beyond the employment context.

Rick Jaffe, Esq.