Digital Debut

States Face Lawsuits Over Lack of Religious Exemptions in Vaccine Mandates

New York, Rhode Island cases highlight differing opinions among federal judges

BY STEPHEN ABRESCH | OCTOBER 2021

Over the course of the late summer, states across the country grappled with a resurgence of the COVID-19 pandemic, driven largely by the Delta variant and exacerbated by a slowdown in new vaccinations. Hospitals and health systems once again faced shortages of ICU beds and a few states began looking for additional tools to curb the newest wave of infections.

California was the first state to act. On July 26, the state public health officer issued a public health order imposing vaccination and testing requirements on various facilities, including ASCs. Under the order, facilities are required to verify the vaccine status of all workers. Any asymptomatic unvaccinated or incompletely vaccinated workers are required to undergo diagnostic screening testing at least once weekly using either PCR testing or antigen testing. Facilities were required to be in full compliance with the order by August 23.

This set off a cascade of similar orders from other states, many narrower in scope. By September 9, when the Biden administration announced its healthcare worker vaccine mandate as part of the Path Out of the Pandemic plan, 23 states had enacted a COVID-19 vaccine mandate for healthcare workers, with eight states—California, Colorado, Illinois, New Jersey, New York, Oregon, Rhode Island and Washington—including ASCs in their mandates. These eight states represent the most expansive state-level mandates related to healthcare workers, covering public and private, for-profit and nonprofit facilities, but five out of the eight offer “sincerely held religious beliefs” as an exemption to their mandates. Three states, New Jersey, New York and Rhode Island, do not offer this exemption.

Since enforcing their mandate without a religious exemption, these three states have faced different repercussions. While New Jersey saw lawsuits filed over previous mandates on masking in schools, no group has yet sued over the state’s healthcare worker vaccine mandate. In Rhode Island, a US district court judge denied a temporary restraining order filed by healthcare workers over the lack of a religious exemption in the state’s mandate. In her decision, US District Judge Mary McElroy held in part that the constitutional claims made by the plaintiffs, arguing that the mandate violated their First Amendment right to the free exercise of religion, fails in the face of legal precedent, noting, “... courts have held for over a century that mandatory vaccination laws are a valid exercise of a state’s police powers, and such laws have withstood constitutional challenges.” McElroy quoted the 1944 case of Prince v. Massachusetts, finding that “... the right to practice one’s religion freely ‘does not include liberty to expose the community ... to communicable disease.’”

New York’s mandate faced a very different reading of precedent in the US District Court for the Northern District of New York. The state issued its healthcare worker vaccination mandate through emergency regulations on August 26. The emergency regulations order “covered entities” that are defined to include general hospitals, nursing homes and diagnostic and treatment facilities (this final facility type includes ASCs) to continuously require personnel to be fully vaccinated against COVID-19. Current personnel at general hospitals and nursing homes were required to receive their first dose by September 27, 2021, and staff at all other covered entities were required to receive a first dose by October 7. The mandate allows for medical exemptions, but not exemptions for religious reasons.

In response, 17 medical professionals in the state filed suit, alleging that their “sincerely held religious beliefs” compel them to refuse the COVID-19 vaccines currently available and that the mandate represents a violation of the First and Fourteenth Amendments, the Supremacy Clause and the Equal Protection Clause of the US Constitution. The plaintiffs requested the judge issue a temporary restraining order and a preliminary injunction that would prevent the state from enforcing the mandate “... to the extent it categorically requires health care employers to deny or revoke religious exemptions from COVID-19 vaccination mandates.” On September 14, US District Judge David Hurd issued a temporary restraining order enjoining the state from enforcing the mandate, stating, “The vaccine mandate is suspended in operation to the extent that the DOH is barred from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination or that they revoke any exemptions employers already granted before the vaccine mandate issued.”

In the state’s response to the temporary restraining order, Attorney General Letitia James used many of the arguments highlighted by McElroy’s decision in Rhode Island. James noted that “For over a century, courts have upheld similar mandatory vaccination laws under the Free Exercise Clause and Equal Protection Clause. Second, it is well-established that the Supremacy Clause does not provide a private right of action. Moreover, Title VII of the Civil Rights Act of 1964 does not preempt the State’s authority to require vaccinations of health care workers under Section 2.61.” She relied on much of the same legal precedent cited by McElroy, calling out the decision in Prince v. Massachusetts as establishing the ability of the state to enforce vaccination mandates even in the face of religious objections. However, on October 12, Hurd responded, granting the plaintiffs’ request for a preliminary injunction against the mandate, meaning the state would continue to be barred from enforcing any requirement that employers deny religious exemptions. Hurd concluded that the plaintiffs were likely to succeed on the merits of their constitutional claim, and identified the main question presented in the case as whether the mandate conflicts with the plaintiffs’ and other individuals’ federally protected right to seek a religious accommodation from their individual employers. For Hurd, “the answer to this question is clearly yes.”

The different ways in which Hurd and McElroy interpreted legal precedent in the face of similar lawsuits suggest the issue remains unresolved. What this might mean for the forthcoming federal requirements for healthcare workers, anticipated to be released by the Centers for Medicare & Medicaid Services (CMS) in October, is not clear. The federal requirements are likely to face lawsuits regardless of how they are structured, but it is unclear whether CMS will attempt to avoid lawsuits related to allowable exemptions by looking to the events in New York or instead take their cues from Rhode Island. It might even entertain a third option, seeking a middle path between the two by using a strictly worded religious exemption that would satisfy judges but narrow the number of people who could possibly qualify. Regardless, it seems likely that going forward federal courts will resolve the question of religious exemptions.

Write Stephen Abresch with any questions.