EPPC Scholar Files Second Circuit Brief Supporting Challenge to Lack of Religious Exemptions in New York’s Vaccine Mandate

Published December 9, 2021


On December 9, 2021, EPPC Policy Analyst Rachel N. Morrison filed a second amici brief in Dr. A. v. Hochul—a case challenging the lack of religious exemptions in New York’s vaccine mandate—but this time in the Second Circuit Court of Appeals.

The first amici brief was filed on November 16, 2021, in support of an emergency appeal in the Supreme Court. (You can read more about the Supreme Court brief here.) The Supreme Court, however, has not yet ruled on the appeal, so plaintiffs are requesting that the Second Circuit reconsider the panel decision or rehear the case en banc, which the amici brief supports.

Like the prior brief, the Second Circuit brief explains Title VII’s religious accommodation standard and why New York’s mandate violates Title VII. It was filed on behalf of Title VII religious accommodation experts Sharon Fast Gustafson, former General Counsel of the Equal Employment Opportunity Commission (EEOC), and EPPC’s Rachel Morrison, also a former EEOC employee. A summary of their argument is below.

This case raises the question of whether New York can mandate that employers violate Title VII of the Civil Rights Act of 1964.

New York’s vaccine mandate allows “any reasonable accommodation” for medically exempt unvaccinated employees. N.Y. Comp. Codes R. & Regs. tit. 10, §2.61(d) (2021). However, the mandate categorically prohibits religious exemptions and allows no reasonable accommodation for employees unvaccinated for religious reasons.

Under Title VII, when a workplace rule violates an employee’s sincerely held religious belief, an employer must reasonably accommodate the employee’s religious belief if it can do so without undue hardship to the employer’s business.

The Equal Employment Opportunity Commission (EEOC)—the federal agency tasked with enforcing Title VII—has set out what is required for a religious accommodation to be deemed “reasonable.” An accommodation is not reasonable if it transfers an employee from his current position or if it reduces an employee’s pay, benefits, or responsibilities of employment, and a reasonable accommodation exists that wwould not so harm the employee.

Pursuant to the Supremacy Clause of the U.S. Constitution and Title VII, no state can require employers to violate Title VII’s reasonable accommodation requirement.

New York’s mandate that employers must categorically require employees to be vaccinated against COVID-19, without regard to, or accommodation for, an employee’s sincerely held religious beliefs, is facially infirm. This Court should grant the petition.

Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.

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