Does this offer a portent of what will come of Joe Biden’s attempt to mandate COVID-19 vaccinations in workplaces? Perhaps not, as New York’s mandate had stricter rules and no room for exemptions. Late yesterday, a federal judge enjoined New York from imposing its health-care sector vaccination mandate, ruling that its lack of religious exemption ran afoul of the First Amendment’s right to free religious expression:
A federal judge temporarily blocked the state of New York on Tuesday from forcing medical workers to be vaccinated after a group of health care workers sued, saying their Constitutional rights were violated because the state’s mandate disallowed religious exemptions.
Judge David Hurd in Utica issued the order after 17 health professionals, including doctors and nurses, claimed in a lawsuit Monday that their rights were violated with a vaccine mandate that disallowed the exemptions.
The judge gave New York state until Sept. 22 to respond to the lawsuit in federal court in Utica. If the state opposes the plaintiffs’ request for a preliminary court order blocking the vaccine mandate, a Sept. 28 oral hearing will occur.
The state issued the order Aug. 28, requiring at least a first shot for health care workers at hospitals and nursing homes by Sept. 27. New York State Health Commissioner Dr. Howard Zucker said in a statement last month that new vaccine requirements were needed to help curb the spread of the coronavirus Delta variant and prevent further mutations.
Bear in mind, as always, that temporary injunctions do not necessarily foreshadow final rulings. However, Hurd apparently saw the prospect for the plaintiffs to succeed at trial and found that any damage to their rights in the meantime would be irreparable, and for good reason. The state left them no other choice than to accept the vaccination or lose their jobs. And it’s worth noting that states have much more firm jurisdiction and authority for imposing such a mandate, especially in the health-care sector, where millions of citizens have to risk exposure in order to receive vital medical care. The TRO is not a good sign for Kathy Hochul in New York.
But is it a bad sign for Joe Biden? Probably not, or at least it doesn’t add much to the various deficiencies of his federal vaccine mandate. It’s unclear whether the White House explicitly added a religious exemption to the mandate, but it does have an alternate method of compliance. Workers can choose to test weekly for confirm non-contagious status, and while that might feel burdensome, it will be tough to argue that people have a religious objection to tests that don’t involve blood draws.
Although … who knows for sure? Courts generally take a dim view of challenges on the basis of “sincere belief,” perhaps even in pandemics:
Most labor attorneys agree there is a lot of legal gray area when it comes to claiming and approving religious-based requests for vaccine exemptions.
“I don’t think anybody is 100% clear. The EEOC’s view of sincerely held religious belief is employers aren’t supposed to challenge the sincerity of the belief,” said Jason Reisman, co-chair of Blank Rome’s labor and employment practice group.
Prior to the pandemic, employers asked few questions around individuals’ religious beliefs, if for instance an employee made a request to not work on a holy day.
“Before vaccine mandates, I think religious accommodations were few and far between and generally related to things that didn’t require employers to ask too many questions. It was more about can you work on the Sabbath of your particular religion,” Reisman said.
But in the era of COVID-19, and with the rise of the more contagious and virulent Delta variant, employers are asking more probing questions: “They are becoming more brazen about asking for supporting information, like a note from a religious leader,” Reisman said.
If the market starts incentivizing notes from religious leaders, expect to see the market respond. In fact, it already has:
A pastor is encouraging people to donate to his Tulsa church so they can become an online member and get his signature on a religious exemption from coronavirus vaccine mandates. The pastor, Jackson Lahmeyer, is a 29-year-old small-business owner running in the Republican primary challenge to Sen. James Lankford in 2022.
Lahmeyer, who leads Sheridan Church with his wife, Kendra, said Tuesday that in the past two days, about 30,000 people have downloaded the religious exemption form he created.
“It’s beautiful,” he said. “My phone and my emails have blown up.” …
Some institutions request a signature from a religious authority, but Charles Haynes, senior fellow for religious freedom at the Freedom Forum in Washington, said that those institutions could be on a shaky ground constitutionally. Haynes said that if a person states a sincere religious belief that they want to opt out of vaccination, that should be enough.
“He’s not really selling a religious exemption,” said Haynes, who compared Lahmeyer’s exemption offer to televangelists who sell things like prayer cloths. “He’s selling a bogus idea that you need one.”
That’s what New York hoped to avoid with its stricter, no-exemptions approach. Unfortunately, the First Amendment applies even in pandemics, although the federal courts have been slow to recall that at times.
The federal mandates will likely fail on other grounds, mainly jurisdictional but also on the grounds of being arbitrary and capricious. The complete refusal to deal with naturally acquired immunity will challenge the rational basis of the policy too, and the lack of enforcement mechanisms and resources at OSHA will make it almost entirely moot by the time the government gets around to imposing the mandate at all. But this is, at least, one encouraging sign that courts will not get snowed by the emergency claims from governments and will at least consider the impacts of these mandates on workers in all categories — even in health care.