Over the course of the last few weeks, New York’s vaccine mandates have been the subject of much debate, not only in the sociopolitical arena but also inside of various courtrooms throughout the State.  Currently, New York State is seeking to impose a vaccine mandate on those working within the State’s health care sector (the “NYS Health Care Mandate”), whereas New York City has implemented a vaccine mandate targeting all school district employees and a swath of school contractors (the “NYC School Mandate”), which took effect on October 1, 2021.[1]  Both of these Mandates have been challenged in Court by subsets of impacted employees who are opposed to getting the vaccine.  One of the issues that has been front and center in these lawsuits is whether industry-wide vaccine mandates such as these must include an exemption for workers who establish that their sincerely held religious beliefs prohibit vaccination (i.e. a religious exemption).[2]

As it stands, neither the NYS Health Care Mandate nor the NYC School Mandate City’s provides for a “religious exemption.” The question is whether they pass legal muster absent such an exemption. For now, based on what has transpired in the courts over the past two weeks, the answer is a resounding “yes.”

The Lawsuits Against NYS and NYC

On September 9, 2021, a group of New York City unions representing various school district employees and contractors sued the City in the New York County State Supreme Court (the “City Case”).  Those petitioners sought to enjoin the City, and its governing agencies, from implementing the NYC School Mandate.  The Mandate was originally scheduled to take effect on September 27, 2021 by which time all of the targeted City district employees and contractors needed to be able to furnish proof that they had received at least one (1) dose of the vaccine.  Of significant note, at the time the suit was filed, the City Mandate did not provide for any type of exemptions, religious or medical. Those omissions went to the core of the petitioners’ claims that the Mandate violated their rights under federal and state law.

Four days later, on September 13th, a group of 17 medical professionals employed by New York State brought an action in the Federal Court of the Northern District of New York alleging that the NYS Health Care Mandate violated their rights under state and federal law because it effectively barred their employers from approving any form of religious exemption (the “State Case”).[3]

The core argument put forward by the plaintiffs/petitioners in these cases was that, without a religious exemption, the mandates violated their rights under Title VII of the Civil Rights Act of 1964 and their Freedom of Expression rights under the First Amendment to the US Constitution.[4]

In both cases, the plaintiffs/petitioners were granted temporary restraining orders staying the enforcement of the Mandates pending hearings on the underlying applications for preliminary injunctive relief.  However, as a result of the temporary restraining order issued in the City Case (which the presiding Justice Laurence Love issued on the basis that the NYC School Mandate initially had no reference to the possibility of any medical or religious exemption), the City immediately modified and restated its Mandate to include the following language: “Nothing in this Order shall be construed to prohibit any reasonable accommodation otherwise required by law.”    As a result of this added language, Justice Love dismissed the City Case which he now deemed moot.  Notwithstanding, the NDNY Court in the State Case has yet to decide whether to vacate or convert its TRO to a preliminary injunction, which it announced it would do before the TRO expires on October 12th.

What is clear from a review of the parties’ submissions in both cases coupled with the decision and order of Justice Love dismissing the City Case is that well-settled precedent cannot be reconciled with the religious objectors’ argument that a vaccine mandate must provide for a religious exemption in order to be valid.   If anything, these cases demonstrate that as long as a vaccine mandate provides for the “possibility” of a religious exemption, it should not be overturned on the basis that it wrongfully curtails the employees’ constitutional, federal or state rights on religious grounds.

The First Amendment Issue

Regarding the question of whether excluding a religious exemption from these vaccine mandates runs afoul of the First Amendment, long-standing precedent provides us with the answer. For instance, century-old US Supreme Court precedent provides that a State may exercise its police powers by imposing a vaccine mandate.  Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905).  On the subject of religious liberties, the US Supreme Court has also long recognized that the right to practice one’s religion freely “does not include liberty to expose the community…to communicable disease” (Prince v. Massachusetts, 321 U.S. 158, 166-67 & n. 12) and has more recently identified “compulsory vaccination laws” as being religious-neutral laws that do not require religious exemptions under the First Amendment.  Employment Div., Dep’t of Human Res. Of Ore. v. Smith, 494 U.S. 872, 889 (1990).  If these holdings were not persuasive enough, the 2015 the Second Circuit case of Phillips v. City of New York, 775 F.3d 538, 543 puts the First Amendment issue to rest, at least in that jurisdiction.  In that case, the plaintiffs were challenging the State’s requirement that all children be vaccinated in order to attend public schools.  The law was upheld.  And, as is most relevant here, while the Court acknowledged that the law contained a religious and medical exemption, it nonetheless determined that such exemptions went well beyond what the Constitution requires, stating that “New York could constitutionally require that all children be vaccinated in order to attend public school” without such a religious exemption.  The Court also recognized that the mandate’s limitation on the exercise of religion “[was] not the object…but merely the incidental effect of a generally applicable and otherwise valid provision…the First Amendment has not been offended.”  Smith, 494 U.S. at 878.

Presumably, this same logic and analysis would hold up with any other industry-targeted vaccine mandate since the general intent of these mandates is to maintain the health and safety of the workforce (and public at large); it is not to undermine the religious beliefs of those who oppose the vaccine.  Given that, an appropriately tailored vaccine mandate should withstand challenges from employees on First Amendment grounds since any impact it may have on their religious liberties is to be considered an “incidental” effect of an otherwise religious neutral law.

Title VII Issue

On the Title VII employment discrimination front, the argument tested by those who are opposed to getting the vaccine due to their sincerely held religious beliefs is that the exclusion of a religious exemption invites their employers to make adverse employment decisions (e.g. termination) based on the employee’s religious practices.   To counter this theory, in the cases summarized above, the City and State defendants argued that Title VII merely requires employers to “accommodate” religious beliefs and practices and only to the extent that doing so would not impose an “undue hardship” on the employer.  See 42 U.S.C. § 2000e(j).  It bears mentioning that courts have held that an “undue hardship” is one that results in “more than a de minimus cost to the employer.” Baker v. The Home Depot, 445 F.3d 541, 548 (2d Cir. 2006).  In any event, this “accommodation” requirement explains why the City sought to modify its Mandate to include language clarifying that it should not be interpreted to prohibit such accommodations.  However, what the court in the City Case left unanswered for now is whether a religious exemption can, in some instances, constitute a “reasonable accommodation” that an employer must provide to an employee who opposes the vaccine based on sincerely held religious beliefs.

That issue is not likely to be resolved by the NDNY Court that is overseeing the NYS Health Care Mandate case.  That is because the State defendants are arguing in that case, like the City defendants did in the City Case, that their Mandate does not expressly (or implicitly) prohibit an employer from instituting a reasonable accommodation that could be required under Title VII.  That distinction is key. That is because it is the facial prohibition of an employee’s right to a reasonable accommodation that could render a vaccine mandate unlawful under Title VII, not the lack of a religious exemption.  Put differently, and as the State defendants are arguing, Title VII does not require that an employer provide a blanket religious exemption without regard to undue hardships faced by the employer.  See e.g. Robinson v. Children’s Hospital Boston, No. 14-CV-10263, 2016 WL 1337255, at *8 (D. Mass. Apr. 5, 2016)(rejecting employees failure to accommodate claim under Title VII where religious exemption to influenza vaccination would “cause or increase safety risks or the risk of legal liability for the employer.”).

Therefore, following through on Justice Love’s order dismissing the City Case and the arguments pending before the Court in the State Case, it stands to reason that a vaccine mandate is valid, even without an express religious exemption, as long as it does not foreclose on the possibility that one could be sought by a covered employee as a reasonable accommodation under Title VII.

That being said, even with these Mandates in force, individual plaintiffs may still be able to bring suit against their employers under Title VII on grounds that they were denied a “reasonable accommodation” coming in the form of a religious exemption.  However, in such a case, the employee will have to establish that such a religious exemption is reasonable, necessary, and does not cause an undue hardship to their employer.  To add, these employees will have to prove that they do, in fact, subscribe to a religion with a belief system that is not aligned with getting the vaccine, and that they strictly abide by that religion’s other rules and dictates on a consistent basis.  That is because the sincerity of one’s religious beliefs would be put at issue and would be subject to scrutiny in any such case.  But even if an employee were able to overcome all of the foregoing hurdles, in the end it is the employer who decides what the reasonable accommodation for the employee will be, and it does not necessarily have to be the accommodation that is requested.

Conclusion

Before the COVID-19 pandemic — when we only heard of vaccine mandates in the context of schooling – the legal need to provide religious objectors with an express exemption was already waning in the courts. Now that we are in the throes of the pandemic, the compulsion for employers (either public or private) to provide their employees with “religious exemptions” to their COVID-19 vaccine mandates looks to be expunged for good.  In its place is the reverberating message ringing down from our government leaders and judiciary: Get the Vaccine!

For more information on this article, contact Daniel Shapiro at dshapiro@jaspanllp.com and for additional questions regarding whether or how to implement a COVID-19 vaccine mandate for your business, contact Jessica Baquet at jbaquet@jaspanllp.com.

[1] The NYS Health Care Mandate was promulgated pursuant to an amendment to Department of Health (“DOH”) regulations, and codified in 10 NYCRR § 2.61.

The NYC School Mandate was issued pursuant to an Order of the Commissioner of Health and Hygiene to Require Covid-19 Vaccination for Department of Education Employees, Contractors, and Others, dated August 24, 2021.

[2] By in large, religious objectors to the vaccine argue that getting inoculated cuts against their religious values based on a belief that the vaccines were partially derived from fetal cells used in for research, testing and production.

[3] The controversy was magnified by the fact that the NYS Health Care Mandate was an amendment to a prior mandate promulgated by the DOH on August 18, 2021, which did provide for a religious exemption.