New York appeals injunction preventing vaccination mandate for health care workers

AG argues mandate does not force private employers to terminate workers who refuse to get a shot and can reassign them. Yes

Updated: October 19, 2021 - 10:43pm

New York state officials have filed a formal appeal in federal court against a preliminary injunction keeping them from enforcing a COVID-19 vaccine mandate on health care workers who object based on religious grounds.

The prior week, New York U.S. District Judge David Hurd granted the request of 17 anonymous workers, noting that the state’s decision to allow for medical exceptions but remove faith-based ones from an Aug. 26 order created a “kind of ‘religious gerrymander’ that triggers heightened scrutiny.”

The health care staffers objected to the COVID-19 vaccines, citing their connection to aborted fetal tissue either in development or through testing. They sued because they feared not abiding by the mandate would lead to the loss of jobs, licenses and the ability to work in the state.

However, in her brief to the U.S. Second Circuit Court of Appeals, state Attorney General Letitia James said the mandate in question does not force private employers to terminate workers who refuse to get a shot.

That would allow hospitals and other health care providers to assign unvaccinated workers tasks that would not require them to work in public settings and not run afoul of the Civil Rights Act, James and the state’s legal team argued.

“On the other hand, Title VII does not require the accommodation that plaintiffs seek here, which is the continuation of their work with other personnel, patients and residents despite being unvaccinated,” the brief stated.

The state’s brief also challenges Hurd’s claim that the plaintiffs’ case will likely succeed on its merits, noting that previous vaccination mandates have withstood legal challenges.

James noted that similar vaccination requirements against rubella, ordered in 1980, and measles, ordered in 1991, have only allowed “a narrow medical exemption” for health care workers.

The state’s argument also claims that the plaintiffs, even if they lost their jobs, do not face “irreparable harm” because they can seek compensation through either reinstatement or monetary damages.

While the state claims the plaintiffs have not demonstrated irreparable harm, state officials claim that patients, especially ones who are immunocompromised or too young to receive the vaccine, would face harm. So, too, would individuals in need of emergency care if a COVID-19 outbreak occurred in a health care facility.

“These concerns are especially urgent now in light of the uncertainty surrounding the scope of future COVID-19 outbreaks,” the brief stated. “The emergence and prevalence of the Delta variant have led experts to predict that there will be a fall surge in COVID-19 infections. And limited healthcare resources will soon face additional strains due to seasonal influenza and other diseases that accompany the onset of fall and winter.”

According to the schedule set by the court, lawyers for the health care workers are to submit their brief by Friday, with the state’s reply due next Oct. 25.

Oral arguments for the state’s appeal are set for Oct. 27.

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