Hochul to appeal religious exemptions for vax mandate

A patient receives a vaccine dose for protection against COVID-19. Courtesy of Tribune News Service

A federal judge ruled Tuesday the state must allow religious exemptions to its COVID-19 vaccine mandate for health workers, blowing holes in Gov. Kathy Hochul’s confidence last week the mandate would be upheld in court and raising questions about future requirements.

Judge David Hurd, appointed to the state Northern District Court in Utica by President Bill Clinton in 1999, granted a preliminary injunction temporarily barring the state’s COVID vaccine mandate for health workers who claim a religious exemption against getting Johnson & Johnson’s one-dose or Pfizer or Moderna’s two-dose shot to protect against the deadly upper respiratory infection.

In his 27-page decision, Hurd asks about the state’s requirement conflicting with workers’ federally protected right to seek a religious accommodation from their individual employers.

“The answer to this question is clearly yes,” Hurd wrote.

The 17 anonymous doctors, nurses and therapists in the case, represented by the conservative law firm Thomas More Society based in Chicago, filed suit against Hochul, the state Health Department and commissioner Dr. Howard Zucker and state Attorney General Letitia James.

Hurd ruled the state mandate under Hochul allowed medical exemptions, but not religious exceptions — a violation of Title VII of the federal Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin.

“Federal law requires if you have a sincerely held religious belief, the employer ... can only deny a reasonable accommodation if it would pose an undue hardship on the employer,” Michael McHale, an attorney with the Thomas More Society said Tuesday. “Federal law broadly defines ‘a sincerely held religious belief’ — it can be a personal religious belief that doesn’t necessarily correspond to what your denomination teaches or any institution might teach.

“If private hospitals are allowing medical exemptions, we struggle to see how it would be an undue hardship to grant the same type of accommodations for religious reasons as well.”

Hochul and the other defendants have 30 days to appeal the decision in the federal U.S. 2nd Circuit Court of Appeals.

“My responsibility as governor is to protect the people of this state, and requiring health care workers to get vaccinated accomplishes that,” Hochul said in a statement Tuesday about the preliminary injunction. “I stand behind this mandate, and I will fight this decision in court to keep New Yorkers safe.”

Representatives from the governor’s office would not answer additional questions about the appeal or Tuesday’s decision, referring to Hochul’s statement.

Employees must communicate and explain a credible religious exemption request with their private employer.

Employers can investigate if the employee’s claimed religious beliefs are sincere, but McHale said it’s difficult to undermine a person’s sincerity of religious faith in court.

Tuesday’s decision will allow any health worker denied a religious accommodation under the Sept. 27 vaccine mandate to take action.

“Now that it’s been issued, those employees should absolutely consider requesting religious accommodations,” McHale said.

Some hospitals placed unvaccinated health staff on leave while Tuesday’s decision hung in the balance.

Any unvaccinated New Yorkers who were denied a religious accommodation and terminated from their jobs should consider filing a challenge against their employer to file charges of discrimination under federal law, McHale said.

Plaintiffs argue they cannot consent to being vaccinated against COVID-19 because the three approved vaccines were tested, produced or connected with aborted fetal cell tissues. None of the available immunizations contain such tissue.

Johnson & Johnson, Pfizer and Moderna manufactured and tested their COVID vaccines using laboratory-grown cells based on aborted fetal cells collected several decades ago.

Hochul has expressed confidence several times over the last two weeks that the legal challenge based on religious exemptions will not hold up in court.

“There’s not a legitimate [reason] for religious exemptions because the leaders of all the organized religions have said there’s no legitimate reason,” Hochul said Sept. 27. “We’re going to win that in court in a matter of days.”

The governor’s argument that religious leaders within multiple faiths support the vaccine is not a relevant legal argument, McHale said.

“Government officials cannot determine the legitimacy of someone’s religious belief because a religious leader makes a statement,” he said. “That’s exactly how governmental leaders and our founders set up our country — to prevent religious inquisitions by secular government leaders.

“It’s a stretch for her to be confident about their legal position here,” he added. “It will all be relevant on appeal.”

The state required all hospital and nursing home workers to have at least one COVID-19 vaccine dose by Sept. 27. The state Health Department adopted an emergency regulation Aug. 26 requiring most New York health workers to be vaccinated against the virus within the next 30 days.

Hochul expanded the mandate to include home health aides, workers at assisted living, hospice care and other treatment centers

It remains unclear how Tuesday’s decision will impact future vaccine mandates.

Former Gov. Andrew Cuomo initially instituted the vaccine requirement for health workers earlier in August, but his version allowed for religious exemptions.

The state Health Department amended the order, rescinding religious exemptions, under Hochul, who took office Aug. 24.

Tribune News Service contributed to this report.

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