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Second Circuit U.S. Court of Appeals Decision on Vaccination Mandate Allows State to Bar Most Religious Accommodations

The U.S. Court of Appeals for the Second Circuit on Oct. 29th vacated its preliminary injunction in the health care personnel vaccination mandate cases. As a result, it appears that the State's vaccination mandate can be enforced as written in the regulation – i.e., requiring vaccination of any employee who might expose patients, residents, or other personnel to COVID-19, unless they are medically exempt. The court's very brief decision indicated that it would be issuing a more complete opinion "expeditiously." Without a more detailed opinion, it is difficult for the State and for covered providers to know how the mandate may be enforced. LeadingAge NY has asked the State for direction on how to implement the mandate in light of the court’s decision and has urged the State to give providers time to come into compliance. We have not received any guidance as of the date of this publication.

Our attorneys at Hinman Straub have advised that providers are subject to both the State's vaccination mandate and Title VII of the federal Civil Rights Act (CRA). In order to minimize exposure under either, providers should review requests for religious exemptions under the CRA and, if they are based on sincerely-held religious beliefs, determine whether they may be accommodated without undue hardship on the employer. Pending further guidance from the Department of Health (DOH) or a more complete opinion from the court, it appears that religious accommodations may and must be denied for employees whose job responsibilities entail contact with patients, residents, or other personnel. Specifically, any religious accommodation that permits an unvaccinated individual to expose a patient, resident, or other personnel to COVID-19 could trigger an enforcement action with a fine of up to $250 for a first offense or $500 per violation for any subsequent violation (see 10 NYCRR 1.21). If an employee's work requires contact with patients or other personnel, a religious accommodation allowing the employee to work without being vaccinated would create an undue hardship because it could trigger the fines. Similarly, a religious accommodation that required the employee to work remotely would pose an undue hardship because the employee's responsibilities entail in-person work.

Thus, the safest course to complying with both the CRA and the State's vaccination mandate would be to remove from the schedule any staff member granted a religious accommodation who might expose other personnel, patients, or residents to COVID-19. We understand that widespread staffing shortages make compliance with the vaccination mandate very difficult for many providers. Although the court's decision is effective immediately, it is difficult to believe that, in the immediate aftermath of the decision, DOH will be citing providers for allowing individuals with religious exemptions to perform in-person work. If you do allow employees who have been granted a religious accommodation to work in roles that involve contact with patients or other personnel, we recommend taking additional precautions to ensure that their ability to expose residents, patients, and staff to the virus is minimized.

There will likely be further proceedings in the federal cases that are the subject of the Oct. 29th decision. The Hinman memo describes in further detail the possible path of these cases and other pending federal and state cases.

Members should also be aware that we are expecting federal regulations any day imposing a vaccination mandate on health care personnel working for Medicare- and Medicaid-certified providers as well as an Occupational Safety and Health Administration (OSHA) regulation requiring all employers with over 100 employees to mandate vaccination. It is unclear how this mandate will interact with the State mandate.

We will keep members informed of future developments surrounding vaccination mandates as they arise.

Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838