On December 13, 2021, the Supreme Court of the United States rejected the petition of New York health care workers seeking to stop the State from enforcing regulations requiring covered personnel of hospitals, nursing homes, public health centers, and other health care entities to be fully vaccinated against COVID-19 as a condition of continued employment, subject to narrow exceptions. The Supreme Court’s unsigned order allows the continuing enforcement of the regulations, as litigation of the multiple lawsuits challenging the statewide vaccine mandate for health care workers issued last August continues.

The cases considered by the Supreme Court derived from an opinion of the United States Court of Appeals for the Second Circuit disposing of two lower court orders, one reversing a district court’s stay of the regulations and the other affirming a denial of injunctive relief. We the Patriots USA, Inc, v. Hochul (21-2179) and Dr. A. et al. v. Hochul (21-2566) (Nov. 4, 2021, 2d. Cir.). The Second Circuit panel also issued an opinion clarifying that the controversial regulations, which do not expressly provide for an exemption on the basis of religious objections, do not preclude an employer from providing a reasonable accommodation for employees with sincerely held religious beliefs. Employers subject to the regulation could make reasonable accommodations if doing so would not impose an undue burden and would allow personnel to continue working in a capacity consistent with the mandate, i.e., without coming in contact with patients, residents, or other employees.  For these reasons, the appeals court concluded that the plaintiffs had not established a likelihood of success on the merits of their lawsuits and thus held that the regulations could not be preliminarily enjoined. The individual cases, therefore, were remanded to the trial courts for action consistent with the Second Circuit’s holdings, including continuation of the litigation.

The Supreme Court did not provide a reason for its denials of the plaintiffs’ request for a stay of the New York regulations. Justice Gorsuch, however, wrote a lengthy dissent in which he was joined by Justice Alito, setting forth views on religious freedom. Justice Thomas, while not joining the dissenting opinion, would have granted the requested injunction.

Where does all of this leave employers? The regulations at issue required covered personnel at covered health care institutions in New York State to be fully vaccinated by October 7, 2021, extended to November 22, 2021 after lifting of the injunction. As emergency regulations, they are in effect in 90 day increments, subject to periodic extension. At least for now those regulations stand, with a very narrow exemption. And, based upon the holding of the Second Circuit, it appears unlikely that employees who object to the regulations will be able to mount successful challenges to them.

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