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Liberty Counsel filed an appeal to the Second Circuit Court of Appeals on behalf of five New York health care workers against Governor Kathy Hochul, Department of Health Commissioner Dr. Howard A. Zucker, Trinity Health, Inc., New York Presbyterian Healthcare System, Inc. (NYP), and Westchester Medical Center Advanced Physician Services, P.C., regarding the state’s attempt to ignore federal law and remove religious exemptions and accommodations from unlawful COVID shot mandates for health care workers.

U.S. District Judge Ann Donnelly previously dismissed John Does 1-2, Jane Does 1-3 v. Hochul, and ignored the fact that all health care workers are protected by Title VII of the Civil Rights Act which protects the religious rights of employees. State workers are also protected under the First Amendment.

However, Judge Donnelly wrote that the mandate “is neutral on its face” because “it does not refer to religion at all, and applies to all persons employed or affiliated with a covered entity who could potentially expose other covered personnel, patients or residents to COVID-19; the only exception is for employees with medical conditions that qualify for a medical exemption.” This is not the legal standard. Since New York provides for medical exemptions, refusing to provide for religious exemptions is discriminatory.

The judge also stated that “requiring someone with a religious objection to be vaccinated does not endanger that person’s health, but clearly protects that employee, patients and elderly residents, as well as other employees from infection.” This statement is contradicted by the facts and science and is inappropriate at a motion to dismiss stage, where the judge is required to assume all well-pled facts to be true.

The “Mandatory COVID-19 Vaccination Policy” applies to health care workers in all “hospitals, nursing homes, diagnostic and treatment centers, adult care facilities, certified home health agencies, hospices, long-term home health care programs, AIDS home care programs, licensed home care service agencies and limited licensed home care service agencies.” On August 16, 2021, Governor Hochul announced that the state will now require health care workers to accept or receive one of the three currently available COVID-19 injections to remain employed in the healthcare profession. The deadline for them to become fully vaccinated was Monday, September 27, 2021, for hospital employees and October 7, 2021 for other facilities.

Though Governor Hochul’s announcement initially indicated that there would be “limited exceptions for workers with religious or medical reasons,” the State’s Public Health and Health Planning Council eliminated an exemption and accommodation for religious reasons on August 26.  In fact, under the state’s rule change, the only exemptions permitted in New York will be for medical reasons documented by a physician or certified nurse practitioner.

On Tuesday, a New York trial court ruled that the COVID shot mandate involving former Department of Sanitation employees is “arbitrary and capricious.” The court found that the shot mandate was not about safety and public health but “was about compliance,” reinstated the 16 petitioners to full employment, and ruled they are entitled to back pay.

In his order Judge Ralph Porzio stated, “Being vaccinated does not prevent an individual from contracting or transmitting COVID-19. As of the day of this Decision, CDC guidelines regarding quarantine and isolation are the same for vaccinated and unvaccinated individuals. The Petitioners should not have been terminated for choosing not to protect themselves. We have learned through the course of the pandemic that the vaccine against COVID-19 is not absolute. Breakthrough cases occur, even for those who have been vaccinated and boosted. President Joe Biden has said that the pandemic is over. The State of New York ended the COVID-19 state of emergency over a month ago.”

Liberty Counsel Founder and Chairman Mat Staver said, “There can be no dispute that New York is required by federal law and the U.S. Constitution and provide protections to employees who have sincerely held religious objections to the COVID shots. Governor Hochul and New York health care facilities cannot override federal law and force health care workers to violate their sincerely held religious beliefs by forcing them to inject an experimental substance. All New York health care workers have the legal right to request reasonable accommodation for their sincerely held religious beliefs and forcing COVID shots without exemptions is unlawful.”

Author: Liberty Counsel


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