In courtrooms from Manhattan to Utica, judges are weighing whether exemptions that would cover thousands of health care workers will be allowed.
New York’s vaccine mandate for more than 650,000 hospital and nursing home workers took effect this week, prompting tens of thousands of holdouts to get their first dose of a Covid-19 vaccine as the deadline neared. But the mandate has also prompted a flurry of lawsuits across the state, brought by nurses and others who are seeking exemptions.
In courtrooms from Manhattan to Utica, judges are weighing whether to carve out exemptions that would cover thousands — or even tens of thousands — of health care workers. If courts order such relief, hospitals and nursing homes could be more vulnerable to coronavirus outbreaks, health care officials say.
Alternately, if the mandate is upheld and health care providers fire significant numbers of unvaccinated workers, some hospitals and nursing homes could face staff shortages — although, so far, industry officials say that most seem able to handle limited job losses.
Religious freedom is a leading argument against the mandate.
Several of the suits accuse New York of violating religious freedom by not allowing exemptions on religious grounds. These suits have mostly been brought on behalf of Christian health care workers who say their faith-based opposition to abortion requires them to abstain from receiving a Covid-19 vaccine. Cell lines derived from fetuses aborted decades ago were used in the development or production or testing of the vaccines.
Many religious authorities have encouraged vaccination. (Pope Francis, for instance, has called getting vaccinated “an act of love,” and the Vatican has said it “is morally acceptable” to receive Covid-19 vaccines that have some link to fetal tissue.) Despite that, health care workers involved in suits in New York have said receiving the vaccine would violate their religious beliefs against abortion.
The state has countered that mandatory vaccinations for health care workers are necessary to protect not just the workers but also patients.
“Reducing the number of unvaccinated personnel who can expose vulnerable patients to the potentially deadly disease in the health care setting is of utmost importance,” a senior state Health Department official, Elizabeth Rausch-Phung, said in an affidavit this month. “To accomplish this goal, it is imperative that the regulation limit the allowed exemptions.”
Some workers claim the mandate is invalid.
In a case set to be heard on Thursday in State Supreme Court in Albany, five medical workers and a Republican member of the State Assembly, David J. DiPietro, argue that the entire mandate is invalid because it should have been enacted by the State Legislature, not as an emergency regulation by the executive branch.
Gov. Andrew M. Cuomo was given broad emergency powers during the pandemic, but lawmakers revoked that authority in June, the suit points out.
“This would represent an immense expansion of the executive branch’s powers,” the suit states. The government maintains that it was appropriate to issue the emergency regulation, which will expire in November unless it is renewed.
Several of the plaintiffs in the suit say they have already had Covid-19, and they argue that the mandate should include an exception for people who have natural immunity. In Britain and Israel, for example, proof of a prior infection is considered enough to receive a digital vaccination passport for six months; in the United States, that is not the case.
“They should have had the right to lobby the Legislature about that,” said Todd Aldinger, the lawyer for the plaintiffs. “This is really about participation in democracy.”
Are any exemptions allowed?
At present, the state allows medical exemptions for narrow categories of health care workers, including those who are allergic to the vaccine components. In all, just half of 1 percent of hospital workers qualified for medical exemptions, according to data released by the state Tuesday.
The mandate does not currently allow for religious exemptions. But an earlier version of the vaccine mandate did, and some hospitals had begun to grant them. NewYork-Presbyterian had issued 129 religious exemptions out of more than 1,000 requests before withdrawing the exemptions after the state policy changed in late August, court documents show.
The state had given little reason for the sudden switch. But in a court hearing before the U.S. Court of Appeals for the Second Circuit on Wednesday, a top state lawyer offered an explanation.
The lawyer, Steven Wu, a deputy solicitor general of New York, said that the two versions of the vaccine mandates — one allowing for religious exemptions, the other not — emerged from different parts of the Health Department, with little coordination. In ultimately deciding to remove the religious exemption, Mr. Wu said, state health authorities were following previous mandates for measles and rubella vaccines that did not offer religious exemptions for health care workers.
One issue in the litigation is whether it is lawful for the state to offer medical, but not religious, exemptions.
What have the courts done so far?
Much of the focus is on Federal District Court in Utica, where 17 plaintiffs — including doctors and nurses — have argued that the state mandate restricts their First Amendment right to practice their religion and intrudes on federal anti-discrimination law.
“When you grant an exemption and then days later yank it away, that indicates a targeting of religion,” a lawyer for the plaintiffs in the Utica case, Christopher Ferrara, said in an interview.
The judge hearing the case, David N. Hurd, has temporarily barred the state from trying to force any hospital or nursing home to fire a worker seeking a religious exemption.
But under Judge Hurd’s order, hospitals can refuse to grant religious exemptions, and nothing is stopping them from firing unvaccinated workers who have sought them, plaintiffs’ lawyers say. Still, some hospital systems, like NewYork-Presbyterian, have indicated they will take no action against employees with pending requests for religious exemptions while Judge Hurd’s order remains in effect.
Judge Hurd has indicated that he will issue a fuller ruling within two weeks.
The litigation in Utica is not the only court case in play. Another lawsuit, filed on behalf of two Long Island nurses and a health care worker in Syracuse, reached a federal appeals court in Manhattan on Wednesday. The case was brought by We The Patriots USA, Inc., an organization whose co-founder is a lawyer who has been involved in litigation against vaccine requirements in Connecticut.
In oral arguments before a panel of Second Circuit judges on Wednesday, a lawyer for the plaintiffs, Cameron Atkinson, said that two of the health care workers — nurses at Syosset Hospital on Long Island — had worked shifts as recently as Tuesday night. But their jobs were in imminent danger, he said, explaining that both “had been informed they would be terminated on a rolling basis.”
The judges on the panel at times sounded reluctant to involve themselves in the legal dispute at this stage, while the litigation in Utica was underway and an order was already in effect barring the state Health Department from enforcing the rule against religious exemptions. A decision in the case could come any day.
Statements by the governor have become an issue.
In recent days, lawyers for the plaintiffs in the two federal cases are trying out a new argument, one focusing on Gov. Kathy Hochul, who succeeded Mr. Cuomo in August. During visits to churches on Sunday, Ms. Hochul said that God inspired scientists to create a vaccine and wants people to get vaccinated against Covid-19.
“I know you’re vaccinated, you’re the smart ones, but you know there’s people out there who aren’t listening to God and what God wants,” she said at the Christian Cultural Center, a megachurch in Brooklyn. “You know who they are.”
The governor’s statements demonstrated “a special hostility toward people of a particular faith,” We the Patriots USA’s lawyers wrote in court papers filed on Tuesday.
In an interview, Mr. Ferrara, the lawyer in the Utica case, said he also intended to raise the governor’s statements in court.
“What the governor has done here is openly express religious animus toward those who disagree — this is incredible — with her religious view,” said Mr. Ferrara, a special counsel to the Thomas More Society, a conservative, nonprofit law firm that often represents anti-abortion groups.
Through a spokeswoman, the governor declined to comment on the litigation.
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