Browsed by
Category: Vaccination Issues

All eyes are now on the Sixth Circuit as it considers whether to lift the Fifth Circuit’s stay of the Biden OSHA COVID mandate

All eyes are now on the Sixth Circuit as it considers whether to lift the Fifth Circuit’s stay of the Biden OSHA COVID mandate

To recap, the Fifth Circuit recently stayed the implementation of the Biden Administration’s OSHA-created COVID vaccine mandate. I think the Fifth Circuit’s decision is clear, cogent, and powerful. Here it is and it is well worth reading.
5th Stay

And let’s face it, there aren’t many opportunities to read appellate court decisions which temporarily stop a vaccine mandate and which agree with what you believe in.

One of the most heartening things about the opinion for those opposed to the COVID mandate is its recognition that the mandate is overinclusive in part because it doesn’t take into account that previously infected people have natural immunity and presumably might not need the vaccine as much as the unvaccinated.

To my knowledge, this is the first time a court has recognized this critically important point. Natural immunity was the basis of two lawsuits filed in the Central District of California. Neither succeeded in obtaining a preliminary injunction and the courts didn’t give the natural immunity argument the time of day.

So, that a court – and an appellate court to boot – acknowledged that natural immunity exists and that it is a factor in evaluating a vaccine mandate, is to me, a very big thing. It opens up all kinds of possibilities that had heretofore been closed.

This is especially important since I think more and more studies and larger studies will show the dramatically better effectiveness of natural immunity over the COVID vaccines. At some point, I think the courts will be forced to recognize this difference and require different rules for the previously infected. That point could be pretty soon if the Sixth Circuit adopts the Fifth’s recognition of this fact (or technically it was something the Fifth presumed to be the case based on the evidence presented). So, we might be at the beginning of seeing the tide turn on the natural immunity argument.

Back to the Sixth Circuit and what it is facing. The DOJ just filed its request to dissolve the Fifth Circuit’s stay of the OSHA COVID vaccine mandate. Here is its brief.
Biden Motion to Dissolve Stay(2).

No big surprises here. We’re the federal government and we have to protect workers, and we’re still in an emergency and we know best. After looking over the motion, I’m still not seeing it and I think judges, especially conservative judges, are going to have a hard time granting that kind of power over such a big chunk of the nation’s workforce on a one-size-fits-all approach.

I am still predicting that the Sixth Circuit will continue the stay. If it does, then for sure the three liberal Supreme Court justices will want to take the case up on its shadow docket. And the three conservative justices won’t. That leaves three less extreme conservatives. It would only take one of the three to hear the case. One big problem which one or two of them had with prior cases was the lack of a complete record, which could weigh against their voting to hear the case on the limited record. That might be more of a factor if the Sixth terminates the stay.

But in the end, this is the federal government that would be requesting to overturn the Sixth’s stay on a very, very big deal case that has an impact on tens of millions of workers. Therefore, for that reason alone, I can easily see the Supremes weighing in on this even without a full record.

And that’s what I’m going with. The Supremes will hear the case if the Sixth continues the stay. If the Sixth rescinds the stay, the Supremes might still take it, if for no other reason that there would be a conflict between the circuits in decisions (though not actually because the Sixth has all the cases now). Every once in a long while there is a case that is just too big, important, and consequential for the Supremes to ignore, despite the paucity of the record. I think this is one of them.

Ultimately, I just don’t see the conservative majority letting Joe Biden order every single employee in the US who works for a company with over 100 employees to get a vaccine. That is just too much power for one man or the federal government. I think that is going to deeply trouble the conservatives. Also, look for another passionate opinion with some wonderfully constructed catchphrases from master phrasesmith Justice Gorsuch in a concurring opinion.

In short, I don’t think either the Sixth or the Supremes are going to let this go into effect. So, if you are affected by the OSHA COVID mandate and you don’t want to get the shot, keep doing nothing!

Rick Jaffe, Esq.

If You are a Kaiser employee or have a child in the San Diego School District and were hoping for injunctive relief from the COVID Mandate, sorry, it’s not happening

If You are a Kaiser employee or have a child in the San Diego School District and were hoping for injunctive relief from the COVID Mandate, sorry, it’s not happening

Yesterday, federal courts in the Northern and Southern districts of California denied requests for injunctive relief for Kaiser employees and San Diego school district kids whose parents didn’t want them to take the COVID vaccine.
No surprises here.

The SD school district case upheld the mandate that prohibits in-person learning or in-person extracurricular activities without complying with the vaccine mandate.

Here is the opinion. Thomas More SD TRO Denied.

The plaintiffs tried to assert a free exercise clause argument based on the two Supreme Court cases which overturned in-person restrictions to religious services (Cuomo and the second South Pentacostall case). But the district court correctly held that those cases do not apply. Those two cases involved regulation which directly impacted people’s right to worship in a house of worship, which directly impacts the free exercise of religion. Not wanting to take a vaccine because of religious beliefs, and having restrictions or being barred from a in-person learning, just is not a comparable restriction. This decision is in line with all district and appellate court decisions on the issue and related issues: the Sixth Circuit (the Indiana University case), the Second Circuit (the Health care workers’ cases), the Houston district court case (involving Methodist hospital nurses which gave little deference to their “vaccine preferences”), as well as the two central district of California cases which rejected challenges to vaccine mandates on different grounds, (at least one of which was also rejected by the 9th Circuit and the Supreme Court).

The Kaiser case was the same ol same ol, with some state privacy claims.

Here is that decision: 39 – Order denying re PI

People, I’m sorry, but the religious free exercise rights and the privacy argument isn’t going to work, probably not ever, but certainly not in a pandemic.

As I said many times in the past, the Constitution isn’t a suicide pact; you don’t have a right to endanger other people and judges don’t pay any attention to like-minded medical experts expressing a minority view about how safe the unvaccinated are.

It may turn out that everything you think is right.

And by the way, the entire argument, soup to nuts, is all laid out very cogently in Bobby Kennedy’s new book. If you haven’t ordered and read it yet, you should. Here is the link to it. https://www.amazon.com/Real-Anthony-Fauci-Pharma-Democracy/dp/B09LVYYTJJ/ref=sr_1_1?crid=5VHABU49QWEF&keywords=the+truth+about+anthony+fauci&qid=1637427199&sprefix=the+truth+about+%2Caps%2C176&sr=8-1 .

However, unless and until what Bobby K lays out becomes widely accepted, judges will continue to rule the way they are ruling in all these privacy, bodily integrity, informed consent, and free exercise cases involving vaccine mandates.

The only real open question at this point is how far the federal government can go or whether it has to be left to the state and local governments and private companies. So, the only sure-fire solution is to find a place with like-minded people, which many of you are doing. For sure, not what you wanted to hear, but that’s the reality which I don’t think will change in the short term or with the latest and greatest lawsuit.

All of these cases have to do with work and school. There is of course a still small but disturbing trend toward barring the unvaccinated from venues, activities and even eating and drinking establishments. There has been some pushback. If the fourth wave comes to the US and it’s big, that’s where the next round of litigation will occur.

If they start to restrict essential daily activities like shopping for basics, that’s where I can see the courts stepping in. I think this is a possibility if there is a big fourth wave because I don’t think the country will tolerate another lock-down. The new work-around to a full lock-down is Austria’s lock-down of the unvaccinated. I think that kind of restriction might change the mindset of the judiciary. But, I hope it does not come to that.

Rick Jaffe, Esq.

The OSHA COVID Mandate Overreach (updated)

The OSHA COVID Mandate Overreach (updated)

I have to say, I didn’t see the OSHA COVID mandate coming. I get Jacobson (and I happen to think that the core legal principle will be upheld), but part of what I take from that case is that it’s the police powers of the states and local governments which are directly responsible for public health.

We do live in a federal system where there is an overlap of governmental jurisdictions and powers. However, other than the federal government’s jurisdiction over its employees, (and limiting entry into the US) I didn’t think the feds would ever try to assert its power to pass a general vaccine mandate. Hell, early in his tenure, even President Biden seemed to recognize that limitation. So like I said, I didn’t see that one coming.

And like many attorneys, I don’t think it’s going to fly.

You all know that the Fifth Circuit issued a start and issued a blistering opinion. But because of the multitudes of lawsuits against the mandate by the states and some private companies, by lottery, all the cases are being transferred to the Sixth Circuit, which is reputed to be very conservative. I would remind you that the Sixth Circuit rejected a stay of an Indiana district court judge’s refusal to grant a preliminary injunction on a religious exemption to the Indiana University’s COVID mandate. (Here is my post about that https://wp.me/p7pwQD-18J ). That case followed Jacobson . But this case is different is Jacobson is not a binding precedent, because it deals with technical issues of statutory interpretation and turf. That is to say the limitations of the federal government in general and under the 10th Amendment, which gives the states the powers to govern not expressly granted to the federal government.

Conservative or liberal, I think any federal court is going to have a hard time backing the feds on this. We are a year and a half into the pandemic. How long is the emergency going to last? What about when the virus becomes endemic? I think judges are going to struggle with giving the federal government open-ended control of an area that has historically been a matter of state concern and enforcement. One of the reasons is that different states have different requirements for COVID vaccination of their population. So, a national policy for employees seems unwise (the “one size fits all argument”).

Relatedly, the biggest stretch is the inclusion of federal contractors, albiet via a separate mandate. The University of California tried that and succeeded with that in the flu case, but it had Jacobson. . This is different. True in general the federal government as a party to a contract has the power to put whatever terms it wants in contracts, but I think it suffers the same problem as the OSHA mandate because it steps on the toes of the state’s police powers to regulate public health. Therefore and again, I think the judges deciding these cases are going to be very reluctant to give that kind of power to the federal government to impose a national vaccine mandate on workers or federal contractees. In terms of the OSHA mandate, it only applies to employers who have 100 employees. The fact that the mandate doesn’t effect employers with a smaller number of employees seems to make the mandate both arbitrary and ineffective from the get-go.

Of course, whatever the result, the losing party will file for a stay with the Supremes. FYI, I never thought the challenges to the NY health care workers’ vaccine mandate without a religious exemption had a chance of being accepted and adjudicated by the Supremes on its shadow docket. But this case is different for the two reasons I have mentioned. It’s not governed by Jacobson. More importantly, it’s a matter of federalism, meaning, the power of the state and local governments to regulate public health, and the federal government’s attempt to usurp that power. I think all federal judges are sensitive to that kind of issue.

If the mandate is rejected, it would not shock me if the decision was based on narrow statutory grounds, like the failure to establish a continuing emergency justifying an OSHA executive or administrative order or regulation. I think that upholding the OSHA mandate creates too big a precedent and opens the door to continued federal overreach. I don’t think the federal courts are going to allow it.

After 20 months of more government control over people’s lives than we have seen, maybe ever, I think people are getting pretty fed-up with government interference. I would expect the Sixth Circuit’s decision to reflect that sentiment, or at least be the impetus for continuing the injunction pending the trial of the case. And I would expect the Supremes to agree.

So, if you are targeted by the OSHA mandate and don’t want to get the shot, obviously, don’t quit and wait to see how it plays out. I think there is an excellent chance that the mandate will never go into effect, and I mean never. The mandate for federal government contractees may be a closer case, but in the end its overinclusion and underinclusion (as noted by the Fifth Circuit in its recent decision) I think will be the deciding factor in the court’s rejection of the rule.

Rick Jaffe, Esq.

Religious Exemption Guidance from the EEOC

Religious Exemption Guidance from the EEOC

I receive many requests for consultations to help filling out employer religious exemption requests. For many reasons, not the least of which is my litigation work, I don’t offer that service. However, the EEOC publishes some pretty good information about the religious exemptions requirements (and what it does not require), including some information about how far employers can go in questioning the sincerity of the beliefs, and the whole reasonable accommodation issue. If you haven’t seen it, here it is. If this affects you, I’d give it a close read.

“L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances. If an employer shows that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant the accommodation. See generally Section 12: Religious Discrimination; EEOC Guidelines on Discrimination Because of Religion. Although other laws, such as the Religious Freedom Restoration Act (RFRA), may also protect religious freedom in some circumstances, this technical assistance only describes employment rights and obligations under Title VII.

L.1. Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer? If so, is there specific language that must be used under Title VII? (10/28/21)

Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances (hereafter called “religious beliefs”). Under Title VII, this is called a request for a “religious accommodation” or a “reasonable accommodation.”

When making the request, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.

The same principles apply if employees have a religious conflict with getting a particular vaccine and wish to wait until an alternative version or specific brand of COVID-19 vaccine is available.

As a best practice, an employer should provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation.

As an example, here is how EEOC designed its own form for its own workplace. Although the EEOC’s internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic. (Note: Persons not employed by the EEOC should not submit this form to the EEOC to request a religious accommodation.)

L.2. Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? May the employer ask for additional information? (10/25/21)

Generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation. See generally Section 12-IV.A.2: Religious Discrimination.

The definition of “religion” under Title VII protects nontraditional religious beliefs that may be unfamiliar to employers. While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, employees may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it. By contrast, Title VII does not protect social, political, or economic views, or personal preferences. Section 12-I.A.1: Religious Discrimination (definition of religion). Thus, objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.

The sincerity of an employee’s stated religious beliefs also is not usually in dispute. The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Section 12-I.A.2: Religious Discrimination (credibility and sincerity). Factors that – either alone or in combination – might undermine an employee’s credibility include: whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.

L.3. How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation? (10/25/21)

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment. For suggestions about types of reasonable accommodations for unvaccinated employees, see K.6, above. In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances without imposing an undue hardship.

If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation. 42 U.S.C. § 2000e(j). The Supreme Court has held that requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.

Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work. For a more detailed discussion, see Section 12-IV.B: Religious Discrimination (discussing undue hardship).

An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on speculative hardships when faced with an employee’s religious objection but, rather, should rely on objective information. Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

L.4. If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, does it have to grant the requests of all employees who seek an accommodation because of sincerely held religious beliefs? (10/25/21)

No. The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. When an employer is assessing whether exempting an employee from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation. A mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship, but the employer may take into account the cumulative cost or burden of granting accommodations to other employees.

L.5. Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII? (10/25/21)

No. If there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship under Title VII, the employer may choose which accommodation to offer. If more than one accommodation would be effective in eliminating the religious conflict, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee. If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.

An employer should consider all possible alternatives to determine whether exempting an employee from a vaccination requirement would impose an undue hardship. See, e.g., K.2. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.

L.6. If an employer grants a religious accommodation to an employee, can the employer later reconsider it? (10/25/21)

The obligation to provide religious accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances. Employees’ religious beliefs and practices may evolve or change over time and may result in requests for additional or different religious accommodations. Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances. As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it and consider whether there are alternative accommodations that would not impose an undue hardship.”

I hope this helps answer your questions. I don’t think we’ll have real substantive opinions on these issues for some time. Anything beyond the above which is told to you by anyone is either just speculation or personal or professional experience dealing with specific companies which might be useful on some level but can’t necessarily be applied to your employer.

The EEOC also provides similar information about disability accommodations as well as some valuable general information relevant to these issues. Here is the link to EEOC’s main page with hyperlinks to the specific topics. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#L

Rick Jaffe, Esq.

There is more to the Supreme Court’s Decision Not to Hear Maine’s Heathcare Worker’s Vaccine Mandate than the Headline

There is more to the Supreme Court’s Decision Not to Hear Maine’s Heathcare Worker’s Vaccine Mandate than the Headline

On Friday it was widely reported that the Supreme Court decided not to take up an emergency application for a stay of Maine’s vaccine mandate for healthcare workers, which mandate had a medical but not a religious exemption/accommodation. But, there was actually more going on at the Supremes than the headline indicated, and it is very welcome news for those who believe there is a constitutional right to a religious exemption to a vaccine mandate. The result of course was that the Supremes are not going to hear the case.

This decision came on the court’s shadow docket, meaning hearing a case before there is a final adjudication by the district court and an appeal on the merits by the federal court of appeals. The shadow docket is how the Supremes overturned the New York and then California’s restrictions on church services. (And the shadow docket was how prior to Justice Barrett joining the court, the Supremes upheld a similar restriction brought by the very same California Church.)

Anyway, back to the Supremes decision not to accept the Maine case to quickly review the mandate. The three liberals plus Justice Roberts wrote nothing substantive, as is usually the case when the Supremes decide not to take a case up in an emergency application. But Justice Barrett wrote a concurring opinion to which Justice Kavanaugh joined. They agreed with the four in not taking the case now, but they wanted to make clear that their reasons were technical and procedural, not substantive, i.e. that they necessarily think the First Circuit was correct in denying relief. Justice Barrett thought that since this was the first time the court was dealing with this important issue, a full record was needed. Meaning, they didn’t think the shadow docket was the right or a good enough procedural vehicle to deal with this issue.

Certainly, the record in the Maine case (as it is in the Second Circuit’s cases involving the New York mandate) is not well developed compared to after a full trial. However, that didn’t stop the Supremes from first upholding the restrictions on religious gatherings in the South Pentecostal case, and then reversing course in the Cuomo and second South Pentecostal case.

I suppose you could say those restrictions on the percent capacity at a church service versus different restrictions on say a hardware store is a simpler issue. But still…

Judge Barrett is a very practicing Catholic and you would think that might sway her to hear the case now. But it didn’t. I would speculate that since the Catholic church has no opposition to this or any other vaccine, she might want a more developed record on the sincerity of the plaintiff’s beliefs since such beliefs could be challenged as convenient and recently discovered, if not pretextual. I think all there is so far in all these cases is just written declarations from the plaintiffs making unchallenged statements about their religious beliefs. Of course, the argument could be made that it’s not the government’s role to even question religious beliefs, but I think the courts will allow some inquiry when these cases are tried.

But the real news from the decision is that the three arch-conservative anti-institutional justices dissented and would have heard the case now.

And the real heartening news for those in support of a robust religious exemption is that Justice Gorsuch, (who for my money is by far the best wordsmith on the Court) basically bought everything that the proponents were selling.

He talked about the brave applicant healthcare workers who put their lives at risk on the front lines during the pandemic.

More importantly and huge is that he saw the religious exemption as the same as a medical exemption. Hence he bought into the notion that the Maine mandate was not neutral on its face. That triggered a strict scrutiny analysis, meaning a compelling state interest and the least restrictive means.

But the most heartening thing was what followed. First, that the analysis had to focus not so much on the public health at large but these plaintiff applicants, which diminished the compelling state interest (I didn’t quite follow his argument about that point honestly).

Second, and something that should apply in all such cases, the fact that other states have preserved the religious exemption in their vaccine mandates was enough for him (and the other two ultra-conservatives) to conclude as a matter of law that Maine did not use the least restrictive means possible. So, although his actual conclusion was that the court should have accepted the case, it is clear what he (and the other two) think the case should be decided. And that’s very good news for the advocates of the religious mandate.

Here are the concurring and dissenting opinions in the case: wo possible points to argue:concuringanddissentingopinions

Still, that’s only three of nine justices who wanted to hear the case now on the existing, admittedly thin record. FYI: Two of the three Second Circuit judges at the oral argument last week voiced concerns about the inadequacy of the record in the two New York preliminary injunction cases. But those judges concluded that since the burden lies on those seeking an injunction, the paucity of the record weighed against granting preliminary relief.

Will the Supremes act any differently in the emergency application to stay the New York Healthcare worker mandate?

I don’t think so. I think the similarities in the two orders outweigh and are more important than the differences. Basically, in both cases, there were pleadings and declarations from the parties and that’s it. No real discovery and no cross-examination.

I would also point out that the Supreme Court’s decision in Jacobson was decided after a trial and full appeal. That is typically the way appellate courts prefer to proceed unless their hands are forced or unless there is a clear majority that feels there is an important constitutional point to be made irrespective of the resolution of factual issues. That was the case with the restrictions of the religious service, but in the end, a vaccine mandate case is probably just too complicated to adjudicate on a preliminary injunction record, at least for the Supremes. And that is basically the simple of what Justice Barrett’s dispositive opinion said. We should have the answer to this in the next 10 days.

So, in the short term, vaccine employer mandates are not going to be stopped. I suspect whatever relief employees can obtain will come from mass protests, walkouts, and slowdowns by the affected employees, and not by the judiciary.

Rick Jaffe, Esq.

Breaking News on the Second Circuit’s Review of the NY Department of Health Vaccine Mandate and MORE BREAKING NEWS FROM THE SUPREME COURT

Breaking News on the Second Circuit’s Review of the NY Department of Health Vaccine Mandate and MORE BREAKING NEWS FROM THE SUPREME COURT

As expected, the the Second Circuit has just issued an order reversing the Northern District of New York’s preliminary injunction barring New York from enforcing its COVID vaccine mandate for New York State health care practitioners.

It also affirmed the Brooklyn district court’s denial of the preliminary injunction against the same law filed by We the Patriots.

All we have so far is the order which says that a decision will be issued “expeditiously.” Here is the order FWIW. 2nd Circuit Loss

That’s the second federal circuit court which rejected a challenge to a state law/order requiring mandatory COVID vaccination for health care workers. The First Circuit’s rejection is currently pending on the Supreme Court’s shadow docket. Before this Second Circuit case gets the the Supreme’s shadow docket, we’ll already have some idea from its treatment of the First Circuit’s decision. I would expect info about that case within two weeks or less.

To me it seems like a hard sell and a big ask, because if the Supremes creates even a hint that there is a federal constitutional right to a religious exemption to mandatory vaccination, that would open the floodgates to challenges to mandatory school vaccination. In a sense, you couldn’t ask for a worse group of plaintiffs to challenge vaccine mandates given the prevailing opinion about the vaccine; namely, health care workers who come in contact with sick patients. Go argue that their personal religious freedom and religious sensibilitie are more important than the safety of all their patients. Good luck with that!

I don’t think the Supremes are going to follow minority scientific views on the health issues. And frankly, after listening to the We the People’s attorney discuss the actual religious conviction issue (how he and his clients no longer take Tylenol, Pepto-Bismol, etc, because they learned they were made or studied or whatever with aborted fetal cells), I just don’t think appellate court judges are going to buy it.

Sorry, but that’s how I see this playing out. Not in a pandemic, and not when it could jeopardize the country’s school mandatory vaccine programs. If adults have a constitutional right to a religious accommodation to a vaccine mandate, for sure, the Constitution would require that right for school children as well. Whatever the Supremes would say to distinguish, there would be a bevy of lawyers (including me) filing lawsuits around the country in states which have removed the religious exemption to mandatory school vaccination. The Second Circuit verbalized that fear at the hearing and that possible unintended consequence. I think will be a very important consideration for the Supremes, as it surely was to the Second Circuit panel whether or not the Supremes explicitly say so.

More Breaking News:

Just heard that the Supremes refused to block Maine’s COVID Vaccine Mandate. So now we have the definitive answer. The chances of the Supremes taking up this Second Circuit case on its shadow docket have drove to basically zero.

On to the next battle and I think that will be the 5-11 kids but I think it will be more about mass non-compliance around the country.

Rick Jaffe, Esq.

My Prediction about the The Second Circuit’s Oral Argument on the NY Department of Health COVID Vaccine Mandate on Health Care Workers Case

My Prediction about the The Second Circuit’s Oral Argument on the NY Department of Health COVID Vaccine Mandate on Health Care Workers Case

My prediction: 3-0 vote to overturn the Northern District’s preliminary injunction order and affirm the Brooklyn District Court’s denial of a preliminary injunction

The scariest moment for Judge Debra Livingston (and maybe the rest of the panel): She asked the We the Patriots Attorney if they ruled that the DOH order violated the free exercise clause because it didn’t allow for a full-on religious exemption, would that mean that all mandatory vaccines which didn’t have a religious exemption would be unconstitutional?

In a moment of absolute candor, but a lack of reading the room and saying more that needed to be said, the lawyer said it would. He then added that he had a Connecticut case challenging mandatory school vaccines based on some of the same arguments he was making here. He didn’t have to say it, but everyone understood he was thinking that if the court ruled for him in this case, he’s going to hop in his car, drive to Connecticuit and show the judge in his other case the opinion, and then ask the judge to toss out all school mandatory vaccination in the entire state.

I felt the gulp, gasp, and shock of Judge Livingston over my phone listening via YouTube. Things hadn’t been going well for the plaintiffs until then, but this lawyer (who spoke after the Northern District prevailing attorney), I think sealed the fate of the plaintiffs. But maybe that’s putting too much importance on one statement, since as stated, the argument didn’t go well for the plaintiffs from the getgo

But maybe that’s even a little unfair because the main sense I got from the questioning between the judges and the plaintiffs’ counsel was that the judges just thought the plaintiffs’ attorneys were wrong about everything, about the meaning of the emergency order, about the law, wrong about the public health crises, and wrong in thinking that the state can’t take what the judges thought were obvious reasonable efforts to stop health care practitioners from infecting their patients. (And yes, I know the argument and evidence about the vaccine not stopping the spread of the disease, but I don’t think the judges were buying that either).

Here are a few other instances where I thought the judges indicated that the plaintiffs counsel were wrong:

The order didn’t preclude employers from granting religious accommodations i.e. providing an alternative to termination that involved continued work without patient contact. They were wrong on thinking that Title VII had what is called field preemption and that as a result, the state could not impose reasonable restrictions despite religious beliefs. They were wrong in arguing that a religious exemption is the same as a medical exemption which required the same treatment; i.e. that there be one in the order which theoretically allowed medical exemptees from continuing to work as before. They were wrong in thinking that the state could not impose reasonable restrictions on employees regardless of their religious beliefs in order to further public health and safety.

If you were listening to this argument and desperately wanted this panel of judges to sympathize with New York health care workers who have religious opposition to the COVID vaccine mandate; if you were hoping that the panel would have been outraged that the state was not allowing unvaccinated health care practitioners to continue to have patient contact, you would have been severely disappointed with the oral argument. You wouldn’t know from the oral argument that one of the lawyers was actually defending a lower court’s ruling in his clients’ favor.

I thought the first plaintiffs attorney, while very well prepared and quite facile on his feet, was agressive to the point of being bumptious (which is a word I almost never use, but aptly describes him. If you don’t know, it means offensively self-assertive).

On numerous occasions he talked over the judges. Let me be specific after being general. When lawyers talk, judges interrupt them with questions. It’s what judges do and most lawyers stop talking when a judge asks a question, even if the lawyer thinks he’s on a roll on an important point. Time and again, this lawyer just kept talking and talking and literally stopped the judge from asking his/her question until after the attorney finished his point. That’s something I don’t see often in oral arguments. To me it’s bad form, but maybe I’m too old school. I don’t think it will have any impact on the outcome, but he wasn’t helping his case in doing that.

He did a couple of other things which I think were unhelpful. For example, Judge Livingston twice asked him to speak about the actual order. And each time he just started talking about his brief which discussed what New York State said about the Order. He basically told the judge that he didn’t care what she wanted, he was going to do it his way. I don’t recall ever seeing a lawyer as unreactive/unresponsive to questioning by a panel of judges. Most lawyers are sensitive to what judges are saying and what’s bothering them, but not this attorney.

But then this guy got a federal judge to enjoin a New York state emergency order. So, whatever he was doing was working, at least possibly until now. But old school that I am, to me he was offensively self assertive. I have to admit that I’ve done some of that myself, and in my youthful days as an attorney. It never worked out as well as I thought it would at the moment.

All in all, it seemed pretty clear that the judges were not buying what he was selling, any of it.

I started with the Plaintiffs’ presentation because that was more dramatic and frankly odd to me. But the state’s attorney spoke first The state was the appellant(the loser) in the Northern district case, and the appellant speaks first at oral argument. THe Assistant Attorney General was a highly skilled advocate. He was precise, cogent, succicently responsive to the questioning by the judges. Time and again, the judges (or at least two of them) asked him questions which allowed him to explain a telling point, the most important of which was that the order did not prevent employers from granting some form of religious accommodation. It just barred them from allowing those having a religious accommodation from having patient contact. Admittedly tough/impossible for surgeons and such. But one judge said that sometimes there are consequences for having religious beliefs based on balancing of competing interests.

The point which Judge Livingston wanted to discuss was why they got rid of the religious exemption from the order even though it was included in Health Commissioner Zucker’s original order. I didn’t quite follow the explanation, something about that his was just a temporary order until a permanent order by the entire health commission could weigh in on it. And it wasn’t an amendment to the health commissioner’s order. I can’t say I fully understood what he said, but the judges seemed to accept it. One of the judges made a comment that just because a guy sticks his finger in a dike, it doesn’t have to stay there.

The state’s lawyer was asked whether the Maine case before the Supreme Court could have a bearing on this case. He said it could and when asked to distinguish the cases, the best he could come up with was that the medical exemptions in the New York order were limited to ACIP guidelines where the Maine law on medical exemptions was broader. In short, not much of a difference. Maybe the question was asked to see whether slow walking a decision might be in order since the Supremes could be weighing in on a similar issue very soon.

The bottom line for me was that it didn’t seem like a close case. The judges just didn’t accept what the plaintiffs’ counsel were arguing. As indicated, I think one of the lawyers scared the bejesus out of them by telling them what they feared, namely that if the panel ruled that a religious exemption to a mandatory vaccination policy is constitutionally required, then bye bye to all state laws which don’t have one for mandatory school vaccination. That was one bold legal move, but I doubt this panel of judges is going to go there.

The court reserved judgement, meaning it will issue a written decision something in the probably near future, perhaps with an eye on when the Supremes will take up the emergency application for a stay in the Maine case.

Rick Jaffe, Esq.

Do Employees Have a Right to a Religious Exemption from the COVID Vaccine Mandate?

Do Employees Have a Right to a Religious Exemption from the COVID Vaccine Mandate?

Hell if I know, but I think we all might find out soon.

Later today, October 27th, the Second Circuit Court of Appeals will decide whether the New York state emergency order which mandated the COVID shot for all state health care workers will go into effect, or whether it will continued to be stayed pending the trial of permanent injunction case.

You will recall that a Northern District federal judge granted a TRO and then a preliminary injunction barring enforcement of the order on the grounds that it did not provide for a religious accommodation (what some call an exception). The district court held the order violated employees’ Title VII rights and also the free exercise clause of the First Amendment’s protection of religious rights.

On the other hand, a Brooklyn federal judge denied a preliminary injunction against the same law. However, the Second Circuit previously issued its own stay of the emergency order pending further consideration, and that further consideration would be today’s hearing which will take up the two cases with opposite results.

I think the dispositive issue in the case is whether the law is neutral on its face or whether it discriminates against religion. If it is neutral on its face and only incidentally burdens religion, then the court will use a very low (and practically non-existant) rational relationship test and uphold the NY emergency order. If, on the other hand, the court finds that it singles out people with religious beliefs and hence is not neutral, then strict scrutiny will be applied and the order will be struck down, probably under both theories (Title VII and the free exercise clause). Strict scrutiny requires the use of the least restrictive means possible to achieve an important and compelling state interest. The reason this emergency order cannot meet that requirement is that the first iteration of the order (issued by then-Commissioner Zucker) had a religious accommodation in it. It’s going to be mighty hard to explain why the second iteration, issued eight days after the first is the least restrictive means. That fact alone kills the order, IMO.

Another important and related issue is whether the religious accommodation/exception is on the same footing as a medical exemption excusing compliance with the emergency order, as the NY order does have a medical exception. Those challenging the order say that they are the same and that the medical exemption show that the law is not neutral on its face. As far back as Jacobson, the Supreme Court at least assumed that a mandatory vaccination law had to contain a medical exception. The idea of a religious exception was not addressed in the case.

The recent Supreme Court cases which overturned state restrictions on religious gatherings under lockdown orders probably make clear that Jacobson can’t be used to justify non-neutral based restrictions to religious practices. Beyond that, these cases might also show that in close cases, the Supremes will find that a law which affects religious practices is not neutral or have only an incidental effect on religion. Hence strict scrutiny is triggered, which means the law will be struck down.

Here is the information about Today’s hearing. It should be super interesting. Here is the audio link to Today’s 2:PM audio hearing.
https://ww2.ca2.uscourts.gov/court.html

In case you haven’t seen it, here is the reply brief in support of the Northern District’s granting of a preliminary injunction. It’s a good read. Hochul Reply Brief

But even more interesting is a recent Maine case that might have made it up to the Supremes on its so-called shadow docket. Maine issued an order similar to the New York order mandating COVID vaccine for health care workers with no religious accommodation. The district court denied the requested preliminary injunction. The First Circuit refused to stay the Maine order pending appeal of the denial of the preliminary injunction, and then denied the appeal. The plaintiffs have gone to the Supreme Court requesting a stay of the order. Justice Breyer ordered the state to respond. Here are the State’s papers in opposition to the request for a stay. Does v. Mills Maine Writ-Scotus Opposition. The papers set out the history of Maine’s exemptions to mandatory vaccination and how the law is neutral, yada, yada. It’s also a good read.

That Justice Breyer, a liberal is involved and ordered the state to respond is probably welcome news to the plaintiffs. If the Supremes decide to issue a decision on the stay motion, that would be a very good thing because the country needs some clarity on whether the state is required to have a religious accommodation in a COVID employee mandate. I think a decision would also have application to private employers because of the Title VII issues which apply to private and public employers alike. The sooner the Supremes weigh in on this, the better.

So, while I sure as hell don’t know if people have a right to a religious accommodation/exemption from an employee COVID mandate, I think we’re all going to know pretty soon.

And what about kids and school children? Well, that’s the next big battle now that one of the vaccines has EUA approval for 5-11-year-olds. More about that another time.

Rick Jaffe, Esq.

Northern District of New York Grants a Preliminary Injunction Against the NY State Emergency Mandatory COVID Vaccination Order with Did Not Contain a Religious Exemption/Accommodation

Northern District of New York Grants a Preliminary Injunction Against the NY State Emergency Mandatory COVID Vaccination Order with Did Not Contain a Religious Exemption/Accommodation

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.

More Action On the Vaccine Mandate Front including some Good News on the Religious Exemptions/Accommodations

More Action On the Vaccine Mandate Front including some Good News on the Religious Exemptions/Accommodations

It seems like each day brings new lawsuits and/or decisions on the mandatory vaccination issue.

Yesterday, the Sixth Circuit denied the Michigan university’s attempt to stay the district court’s preliminary injunction barring the university from denying student athletes from participating in sports activities because they were unvaccinated Here is the decision.

6thcircuit

People opposed to mandatory vaccination and in favor of a strong if not absolute right to a religious exemption will be pleased for many reasons. Lawyers in the field will be pleased because the appellate court used/ratified the strict scrutiny test, which basically means the subject law/regulation/action will most likely be struck down (unless the state can prove a compelling state interest and that the rule was the least restrictive means possible.)

The effect of the decision is that these athletes (and presumably any other athlete whose religious exemption was denied), cannot be stopped from playing sports because they are unvaccinated if they had filed a religious exemption which was denied. I am not completely sure about this because the record in the case was unclear about a few important things, like whether the religious exemptions were denied or granted but the accommodation was that they couldn’t play or practice, but still maintained their scholarships.

There was not a fully developed record on the need for the vaccine for public safety. The rationale for the denial of the exemption/accommodation was unclear and not compelling to the appellate court since there was neither a general student vaccine mandate, nor was there a vaccine mandate for students participating in intramural sports. A more thought-out and coherent policy might have survived constitutional scrutiny, but who knows. But, I do read these inconsistencies as being important to the appellate court in reaching its decision.

This decision was based on the “free exercise” part of the First Amendment religious protection. This means the case only applies to state actors. So it would not be precedent for private universities.

The other question I have and I think remains open is whether the government has to have in place a religious exemption/accommodation for students under the free exercise clause. New York state removed the actual religious exemption to mandatory vaccination a couple years ago and that law survived a constitutional challenge, and no one seemed too concerned about the free exercise rights of NY public school students.

There is some language in the Sixth’s opinion indicating or implying that public entities do not have to grant a religious exemption, but if it does, it couldn’t discriminate against students on the basis of their religious practices. If you’re alittle fuzzy about how this all fits together, join the club.

Per my previous post, I think the Second Circuit’s upcoming hearing on October 14th on the NY state health care workers’ religious exemption might give us a better understanding about some of these issues. There was a more developed record on that preliminary injunction case than in this Michigan case That case nominally involved the Civil Rights act. I am also unclear about how the Free exercise clause works with the Civil Rights act which appears to be the basis of the employee challenges to the vaccine mandates on religious grounds.

One good thing about all these decisions is that the more they conflict with each other, the more likely the Supremes are going to have to weigh in and straighten out this mess.

The way I read the legal landscape, the Supremes don’t necessarily have to take up a Jacobson challenge, but they are going to have to set some rules and decide whether there is a right to a religious exemption to a vaccine mandate and if so, what are the minimum procedure requirements which a school or employer has to utilize, and how deep can they can inquire to determine the applicant’s sincerity of the religious beliefs, if at all.

To date, the best arguments seems to be based on religion rights. The worst on a liberty right, control over one’s body and informed consent. The first two of which are settled law (for now at least) based on Jacobson. The last has not gotten any traction in the courts. That’s how I see it anyway.

Another interesting if expected development is that Kaiser was just sued in a California federal court based on its vaccine mandate. You all will really love that complaint since it raises essentially all the scientific and legal arguments made in all prior cases, like natural immunity is better than vaccine induced immunity, the vaccine doesn’t protect against transmission, etc. It’s all there and you will love reading it. Here it is.
kaiser1.

Rick Jaffe, Esq.