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


Published on November 16, 2021

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On November 16, 2021, EPPC Policy Analyst Rachel N. Morrison filed a motion and proposed amici brief in the Supreme Court case Dr. A. v. Hochul, in support of an emergency application challenging New York’s vaccine mandate. The mandate allows broad medical exemptions but categorically prohibits religious exemptions in violation of federal civil rights law. Several of the applicants had previously received religious accommodations from vaccination from their employers, but after New York’s mandate, those accommodations were revoked.

The 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 of a religious accommodation in order for it to be deemed reasonable. An accommodation is deemed not to be 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 would 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 application and enjoin operation of New York’s mandate as to Applicants.


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