Second Circuit lifts injunction on NY health care vaccine mandate

On October 12, 2021, a court in the Northern District of New York preliminarily enjoined the New York State Department of Health’s (DOH) COVID-19 vaccination rule for healthcare employees to the extent it required employers from denying religious exemptions. On November 4, the United States Court of Appeals for the Second Circuit reversed the injunction, leaving the DOH’s rule intact. However, the Second Circuit’s opinion makes clear that the rule does not eliminate employers’ obligations to consider accommodations for religious objectors. 


On August 26, 2021, the New York State Department of Health adopted emergency rule 10 N.Y.C.R.R. § 2.61 (the Rule), which requires all employees, staff members and volunteers of hospitals, nursing homes, and other covered health care facilities to be vaccinated against COVID-19 by September 27, 2021. The Rule contains a medical exemption for covered employees where the vaccine would be detrimental to their health, but did not contain an exemption for religious objections. 

New York nurses, doctors, and other health care professionals quickly challenged the Rule in federal court, asserting that the lack of a religious exemption violated their constitutional rights and conflicted with Title VII of the Civil Rights Act of 1964, which requires employers to offer reasonable accommodations to employees who need them for religious reasons. On October 12, 2021, a court in the Northern District of New York preliminarily enjoined the Rule, holding that the plaintiffs were likely to succeed on their constitutional and Title VII preemption claims. 


On appeal, the Second Circuit reversed and lifted the injunction. The court held that the plaintiffs failed to demonstrate a likelihood of success on their constitutional claims because they did not show that the Rule was not neutral or generally applicable. The court also rejected the argument that the Rule prohibits the plaintiffs from seeking reasonable accommodations from their employers for religious objections under Title VII. Rather, the Second Circuit agreed with the state’s position that “[n]othing in [the Rule] precludes employers from accommodating religious objectors” where doing so “would not pose a risk of infection to other personnel, patients or residents.” Rather, said the court, the Rule is silent on the availability of religious accommodations, and therefore “does not prevent employees from seeking a religious accommodation allowing them to continue working consistent with the Rule, while avoiding the vaccination requirement.” Since Title VII does not require an employer to provide a preferred accommodation – here remaining unvaccinated in the workplace – the Rule does not violate Title VII by foreclosing that particular accommodation. 


The Second Circuit did not reach the ultimate merits of the claims before it. The court left open the possibility for plaintiffs to prove, through discovery, that “the opportunities for a reasonable accommodation under Title VII for religious objectors . . . are so few as to be illusory.” 

It follows that the Rule does not excuse covered health care employers from engaging in an interactive process when a covered employee makes a religious accommodation request regarding the COVID-19 vaccine. While covered health care employers in New York must comply with the Rule, they should not simply disregard requests for religious accommodations. 



Authored by Michael DeLarco, Dave Baron, and Shannon Finnegan*. 

*Shannon Finnegan is a Law Clerk in the New York office. 

Michael DeLarco
New York
Dave Baron
New York


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