Judge extends ban on state vaccine mandate enforcement in health care

An upstate judge has extended a temporary ban on the state’s ability to enforce vaccine mandates for health care workers seeking religious exemptions, though it may not be the reprieve some employees hope for.

Employers can still seek to carry out their own mandates in the meantime, legal experts said, and determine whether to grant or deny religious exemptions on an individual basis

In a court filing earlier this week, Judge David N. Hurd of the U.S. District Court for the Northern District of New York in Utica put off — in part because of COVID concerns — a Sept. 28 hearing in a lawsuit against the governor’s office and the Department of Health filed by 17 anonymous health care professionals

Hurd also extended a temporary restraining order on the state’s ability to enforce its mandate until Oct. 12. A primary focus is the mandate's rule that religious objections to vaccination could not be considered by health care employers.

According to the mandate, by Monday, Sept. 27, workers in hospitals, nursing homes and other health care settings must have at least one dose of one of the three vaccines

Despite the judge's move, unvaccinated health care workers can still be terminated if their religious objections are not deemed "sincerely-held or genuine," said labor attorney Jessica Baquet.

"Let’s say the plaintiffs win everything they’re asking for," said Baquet, chair of the labor and employment law group at Jaspan Schlesinger in Garden City. "All that means then is that employers will have to review religious exemptions as they would normally." That process, she said, may find than an employee’s claims of religious objection are not sincerely held — for example, an employee claiming that vaccines contain material objectionable to their religion could be asked if they take common medications that contain that same material.

While employers under normal labor law are required to review requests for exemptions based on religion, they are only required to make a good-faith effort to accommodate employees whose objections are deemed legitimate.

"The argument I expect the state to make is that allowing unvaccinated employees in the health care setting will pose a direct threat to the safety to the employee or others in the workplace," said Domenique Camacho Moran, labor and employment attorney at Farrell Fritz in Uniondale.

New Hyde Park-based Northwell Health, the state’s largest health system, "is currently reviewing several hundred requests for religious exemptions," spokeswoman Barbara Osborn said in a statement. "Our review process will be consistent with the applicable law that provides guidance on how to manage these requests."

Osborn emphasized that the upstate judge's order does not block the mandate from going into effect on Monday. It only stops the state from barring religious exemptions.

"We are currently reviewing the judge’s order to understand our obligations and any potential operational implications and determine how to most effectively adjust our processes to accommodate this ruling," she said.

A nurse's aide at an Amityville nursing home said the mandate on health care workers is unfair after everything health care workers have been through over the last 18 months.

"If we don’t choose to be vaccinated, they’re firing us," said Marilyn Welch, 57, of Wyandanch. ""I’m a true believer of what I stand by," Welch said. "My gut is telling me don’t take it."

She plans to file a religious objection on the basis that the vaccine contains fetal cells. None of the vaccines contains fetal cells, although the Johnson & Johnson vaccine was developed using clones of cell lines created decades ago using fetal tissue, according to the New York City Department of Health.

Pope Francis has urged Catholics to get vaccinated, and some Catholic dioceses, including the Diocese of Rockville Centre, have advised parishioners to take the Pfizer or Moderna vaccines instead of Johnson & Johnson.

In another development on the mandate front, on Wednesday, Manhattan Supreme Court Judge Laurence L. Love sided with city officials against unions and removed a temporary restraining order stopping the Department of Education from going ahead with its citywide vaccine mandate on teachers and other public-school staffers.

With David Olson