NYC Vaccine Mandate Upheld

In Kane v. DeBlasio, (SD NY, Aug. 26, 2022), a New York federal district court rejected a challenge by New York City teachers, administrators and staff to New York City's public employee COVID vaccine mandate. They claimed the mandate violates their 1st and 14th amendment rights.  Discussing plaintiffs' free exercise claim, the court said in part:

The Second Circuit has already found that “[t]he Vaccine Mandate, in all its iterations, is neutral and generally applicable.”...

Ignoring the fact that the pandemic has claimed the lives of more than a million people in the United States, plaintiffs take the bold position that the Mandate has the “express purpose of inflicting special disability against minority religious viewpoints,” ... rather than its obvious and explicit goals to ... “potentially save lives, protect public health, and promote public safety.”...

Plaintiffs’ arguments that the Vaccine Mandate is not generally applicable again rely on arguments that the Second Circuit already rejected. 

Marine Corps Enjoined From Discharging Religious Objectors To COVID Vaccination

In Colonel Financial Management Officer v. Austin, (MD FL, Aug. 18, 2022), a Florida federal district court certified as a class all Marines who have a sincere religious objection to COVID vaccination and whose request for a religious accommodation has been (or will  be) denied on appeal. According to the court:

The Marine Corps has granted only eleven accommodations, less than three-tenths of a percent (0.295%) of the 3,733 applications. The record presents no successful applicant other than a few who are due for retirement and prompt separation.

The court found "a systemic failure by the Marine Corps to satisfy RFRA." It said in part:

Notwithstanding a chaplain's affirmation, the Marine Corps rejects as insubstantial any religious objection grounded in the vaccine's connection to aborted fetal tissue because "fetal stem cells are neither used in the manufacture of the Pfizer COVID-19 vaccine nor are they present in the vaccine itself." This "finding," a unilateral lay declaration about a much discussed and much-debated topic, says nothing about the use of aborted fetal cells in the development of the vaccine and this finding says nothing about (and can say nothing about) the theological consequences of that use or about either moral or factual uncertainty. The "finding" says nothing about the religious concepts of, for example, accepting a personal benefit from evil, assisting someone in profiting from evil, cooperating in evil, appropriation of evil, de-sensitization to evil, moral contamination by intimacy with evil, ratification of evil, complicity with evil, or other considerations undoubtedly familiar to a theologian and likely familiar to a thoughtful and religious lay person who has contemplated evil.

The court issued a preliminary injunction against enforcement of the vaccine mandate against class members, or discharge or harassment of them.

Court Gives Guidance On Assessing Whether Parents Had Sincerely Held Religious Belief Opposing Vaccination

In In the Interest of C.C., (GA Sup. Ct., Aug. 23, 2022), the Georgia Supreme Court gave guidance to a Juvenile Court on how to determine whether parents' objections to vaccinating their children (who were now in custody of the state) are based on a sincerely held religious belief. The court said in part:

Even if the Chandlers do not “observe a particular religion” or attend church consistently, and even if their objection to vaccination is partly secular, they may still be able to identify a religious belief that they sincerely hold and that would be violated by the vaccination of their children.... The juvenile court’s sincerity finding apparently rested at least in part on an assumption to the contrary; this prevents us from affirming this ruling....

In fairness to the juvenile court, the proper standard is not easily reducible to a simple formula; accordingly, we offer the following guidance.... Ultimately, the juvenile court must determine whether the Chandlers’ religious objection to the vaccination of their children is “truly held.” ... The court should “sh[y] away from attempting to gauge how central a sincerely held belief is to the believer’s religion.” And it must bear in mind that “a belief can be both secular and religious. The categories are not mutually exclusive.”...

The juvenile court can weigh various factors, including ... how long the Chandlers have asserted their professed religious belief, how much they know about it, and their reliance on “religious literature and teachings supporting the belief[.]” ... Whether the Chandlers have wavered in their actions related to vaccination “also appears to be relevant[.]”... But the juvenile court should also be cautious in affording more than a little weight to evidence that the Chandlers were inconsistent in visibly living out their religious beliefs; for example, the frequency of the family’s church attendance....

Religious Objections To Air Force COVID Mandate Dismissed For Lack of Standing and Ripeness

In Miller v. Austin, (D WY, Aug. 22, 2022), a Wyoming federal district court dismissed on standing and ripeness grounds a suit by two Air Force sergeants who face discharge because of their refusal on religious grounds to receive the COVID vaccine.  The court said in part:

Defendants correctly point out "Plaintiffs have filed this lawsuit to avoid the possibility of involuntary separation."... Furthermore, due to the pending class action, Defendants confirmed Miller's August 25, 2022 separation hearing has been paused.... There is no current threat of separation. Plaintiffs have not yet suffered a concrete, particularized, actual injury in fact because Plaintiffs have not been separated from the USAF. Plaintiffs do not have standing to bring this issue.

More damning to Plaintiffs' case, however, is the fact that the religious exemption is still subject to administrative review within the USAF.

Maine's COVID Vaccine Mandate, Without Religious Exemption, Is Upheld

 In Lowe v. Mills, (D ME, Aug. 18, 2022), a Maine federal district court rejected challenges by seven healthcare workers to Maine's COVID vaccination requirement for healthcare workers. No religious exemption is available; medical exemptions are available. The court rejected plaintiffs Title VII religious discrimination claim, saying in part:

[I]f the Hospital Defendants had granted the sole accommodation sought by the Plaintiffs, it would result in an undue hardship by subjecting the Hospital Defendants to the imposition of a fine and the “immediat[e] suspension of a license.”

The court also rejected plaintiffs' 1st Amendment Free Exercise claims, saying in part:

In the context of the COVID-19 vaccine mandate, the medical exemption is rightly viewed as an essential facet of the vaccine’s core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs. Thus, the medical exemption available as to all mandatory vaccines required by Maine law does not reflect a value judgment unfairly favoring secular interests over religious interests. As an integral part of the vaccine requirement itself, the medical exemption for healthcare workers does not undermine the vaccine mandate’s general applicability.

Class Action Settlement Reached In Religious Challenge To Vaccine Mandate

 A 24-page class action Settlement Agreement (full text) was filed last week in an Illinois federal district court in Doe 1 v. NorthShore University HealthSystem, (ND IL, filed 7/292/2022).  The suit was brought on behalf of approximately 523 employees who requested, but were denied, a religious exemption or accommodation from the hospital system's COVID vaccination mandate. If the settlement is approved by the court, the hospital system will pay $10,330,500 in damages. Most former employees will receive $25,000 each.  $2,061,500 of the settlement amount will go to plaintiffs' counsel. Liberty Counsel issued a press release announcing the settlement and National Catholic Register reported on the settlement agreement.

National Class Action and TRO Approved For Air Force Members With Religious Objections To COVID Vaccine

In Doster v. Kendall, (SD OH, July 14, 2022), an Ohio federal district court certified a national class action on behalf of all active duty and active reserve members of the Air Force and Space Force who have submitted a request for a religious accommodation from the military's COVID vaccine requirement since September 1, 2021, who were confirmed as having had a sincerely held religious belief by Air Force Chaplains, and have had their request denied or have not had action on it. The court went on to issue a 14-day temporary restraining order against enforcing the vaccine mandate against any class member. According to the court

As of June 6, 2022, the Air Force had received 9,062 religious accommodation requests, granting 86 of those requests while denying 6,343 requests....  Following such denials, the Air Force had received 3,837 appeals from Airmen whose initial religious accommodation requests were denied.... As of June 6, 2022, the Air Force has granted only 23 of those appeals, denying 2,978....

Fox19 reports on the decision.

UPDATE: On July 27, the court issued a class-wide preliminary injunction. (Full text of order.) Fox19 reports on the decision.

ADA Does Not Justify Lower Priority For Employees With Religious, Rather Than Disability, Exemptions From Vaccine Mandate

In UnifySCC v. Cody, (ND CA, June 39, 2022), a California federal district court granted a preliminary injunction barring enforcement of one portion of a California county's complex policy on accommodating county employees who have exemptions from the county's COVID vaccine mandate. While upholding significant portions of the county's policy, the court found Free Exercise problems with one part of the arrangement. Exempt employees in high-risk job settings were placed on administrative leave, with the possibility of being transferred to a lower risk job setting. The county gave priority in obtaining a lower-risk position to those with medical and disability exemptions over those with religious exemptions, arguing that this was required by the Americans With Disabilities Act and comparable California regulations. However, the court said in part:

Even if federal or California disability law requires priority consideration of disabled applicants for open government positions, the County cannot grant that class of individuals priority consideration over those with religious exemptions in violation of the First Amendment....

The different reasons for an exemption do not affect the amount of risk the exempt employees pose to other employees or the populations the County serves. Accordingly, the Court finds that it is more likely than not that while the general Accommodations framework is facially and operationally neutral, the part of the framework that prioritizes employees in high-risk roles with secular exemptions over those with religious exemptions for consideration for vacant County positions is not neutral....

Supreme Court Denies Review In New York Vaccine Mandate Case

Last Thursday, the U.S. Supreme Court denied review in Dr. A v. Hochul, (Sup. Ct., certiorari denied 6/30/2022). This is another of the many cases that contend COVID vaccine mandates-- this time for New York healthcare workers-- with medical, but without religious, exemptions violate the Free Exercise clause. Justice Thomas, in an opinion joined by Justices Alito and Gorsuch, dissented from the denial of certiorari, saying in part:

[T]here remains considerable confusion over whether a mandate, like New York’s, that does not exempt religious conduct can ever be neutral and generally applicable if it exempts secular conduct that similarly frustrates the specific interest that the mandate serves. Three Courts of Appeals and one State Supreme Court agree that such requirements are not neutral or generally applicable and therefore trigger strict scrutiny. Meanwhile, the Second Circuit has joined three other Courts of Appeals refusing to apply strict scrutiny. This split is widespread, entrenched, and worth addressing.

This case is an obvious vehicle for resolving that conflict.

The Supreme Court last December, by the same 6-3 vote, had denied an injunction pending the Supreme Court's review of the certiorari petition. (See prior posting.)

7th Circuit Denies Preliminary Injunction To Doctor Fired For Refusing Vaccine

In Halczenko v. Ascension Health, Inc., (7th Cir., June 23, 2022), the U.S. 7th Circuit Court of Appeals affirmed the denial of a preliminary injunction to a pediatric critical care specialist who was fired from his hospital position after he refused, on religious grounds, to comply with the hospital's COVID vaccine mandate. The court concluded that plaintiff had shown neither irreparable injury nor inadequate remedies through a Title VII action. Among other things, the court rejected the argument that the doctor will suffer a deterioration in skills that amounts to irreparable injury.

Another Challenge To School District's Vaccine Mandate Fails

 Doe v. San Diego Unified School District, (SD CA, June 21. 2022), is another attempt by parents and students to challenge the school district's COVID vaccine mandate that does not provide for religious exemptions. The 9th Circuit last year ultimately upheld the school district's prior policy, and the Circuit denied en banc review. The court said in part:

Even Plaintiffs concede that substantively, the new COVID-19 vaccinate mandate is largely the same as before, with a new implementation timeline.... Plaintiffs’ new claims in the FAC are still premised on violations of the Free Exercise Clause, just as the claim in the original complaint was. Accordingly, the Court is bound by the law of this case.

Meat Processor Is Not State Actor In Requiring COVID Vaccination of Employees

In Reed v. Tyson Foods, Inc., (WD TN, June 14, 2022), a Tennessee federal district court dismissed plaintiffs' claims that their rights under RFRA and free exercise clause were violated when their employer required them to be vaccinated against COVID.  The court held that plaintiffs were not state actors, even though the President had invoked the Defense Production Act and instructed meat and poultry procession plants to continue operations.  The court said in part:

Plaintiffs contend that Defendant acted as an “agent of the government … by imposing strict worker vaccination rules to (in the estimation of the federal government), in order to preserve the integrity of the national food supply.”... However, no facts are pled that would enable the Court to find a sufficient nexus between Defendant’s vaccine policy and the involvement of the Government. The mere fact that Defendant relied on OSHA and CDC guidance in formulating its vaccine policy does not make Defendant an “agent of the government.” Nor does the fact that Defendant is subject to the federal government’s COVID-19 guidance for meat and poultry plants convert Defendant into a government actor.

The court also dismissed several other, but not all, of plaintiffs' additional claims.

7th Circuit Hears Oral Arguments On Reinstatement Of Doctor Who Refuses Vaccination On Religious Grounds

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Halczenko v. Ascension Health, Inc., (Docket No. 22-1040, 5/31/2022). In the case, an Indiana federal district court last December (full text of district court opinion) denied a preliminary injunction to a pediatric intensive care doctor who was denied a religious exemption from a hospital's COVID vaccination requirement and was placed on unpaid leave. The court held that plaintiff had not shown irreparable injury necessary to obtain an injunction.  Compensatory and other relief will be available if he ultimately prevails. Bloomberg Law reports on the oral arguments, saying in part:

One judge during oral argument ... homed in on the speculative nature of Paul Halczenko’s alleged irreparable harm from not getting rehired by Ascension St. Vincent Hospital right away—that not practicing medicine would cause his skills to atrophy and cost him his career.

Other members of the three-judge panel—all of whom were appointed by President Donald Trump—focused on apparent factual and legal shortcomings in the doctor’s bid for a preliminary injunction against Ascension Health Inc. and the hospital.

Class Action Filed To Challenge Air Force Vaccine Mandate

Another lawsuit has been filed by religious objectors challenging the military's COVID vaccine mandate.  Brought in a Texas federal district court by nine members of the Air Force as a class action on behalf of all Air Force members with religious objections to the COVID vaccine, the complaint (full text) in Spence v. Austin, (ND TX, filed 5/27/2022), alleges violations of plaintiffs' rights under the 1st Amendment and RFRA.  It alleges in part:

Defendants  have  mandated  that  all  members  of  the  Air  Force  receive  a COVID-19  vaccine,  or  be involuntarily  separated.  In theory, Defendants  offer medical, administrative,  and  religious  accommodations  to  that  mandate.  But  in  practice, only servicemembers with medical or administrative reasons for an exemption from the mandate are accommodated. Religious accommodation requests (“RARs”) are universally denied unless the requester is already imminently leaving the Air Force. 

First Liberty issued a press release announcing the filing of the lawsuit. 

Washington's State Employee Vaccine Mandate Upheld

In Pilz v. Inslee, (WD WA, May 27, 2022), a Washington federal district court upheld a Proclamation by Washington's governor that requires health care, education, and state-agency workers to be vaccinated against COVID.  Among other challenges in a suit brought by 100 state employees, plaintiffs claim the Proclamation infringes on religious beliefs that conflict with vaccination in violation of the Free Exercise clause. The court said in part:

[T]he Proclamation is in no way directed at any religious exercise and, at most, has an incidental impact on some state employees with particular religious beliefs. Therefore, the Court finds that the Proclamation is neutral and generally applicable. The Proclamation is accordingly subject to rational basis review and must be upheld if it is “rationally related to a legitimate governmental purpose.”

University's Vaccine Mandate Did Not Violate Free Exercise Rights Of Students

In America's Frontline Doctors v. Wilcox, (CD CA, May 5, 2022), a California federal district court dismissed the associational plaintiff for lack of standing and rejected individual plaintiffs' free exercise challenge (as well as their other challenges) to the University of California Riverside's COVID vaccine mandate. The court said in part:

Plaintiffs contend that Defendants' enforcement of the Policy violates their right to free exercise of religion. The SAC alleges that Defendants "coerc[e] students to make an unnatural choice...either quickly injecting themselves...[with a COVID-19 vaccine] ... or ...disclosing under duress their religious beliefs to Defendants' religious exemption approval panels."... They also contend that Defendants "prejudicially segregate religious people in order to subject them to...testing."... Plaintiffs have religious exemptions from the Policy. Even so, Plaintiffs contend that testing and masks "substantially interfere with students' religious practices of prayer, speech, and deed."...

The Policy is a neutral and generally applicable. It applies to all students, professors, and staff at the University of California and seeks to protect public health and safety. Defendants offer exemptions for religious beliefs, medical reasons, and disability.... The Policy's exemptions pass constitutional muster.... Plaintiffs allege that they requested religious exemptions under "duress" but fail to explain how their decisions to voluntarily submit a one-page exemption form were executed under "duress." Plaintiffs also fail to describe how masks and testing interfere with the students' religious practices of prayer, speech, and deed. Plaintiffs are only required to mask while indoors—a restriction that also applied to vaccinated students at the time the SAC was filed. Presumably Plaintiffs would be indoors to attend class, so it is unclear how the Policy interferes with religious practices.

Cert. Denied In Challenge To NY Repeal Of Religious Exemption To School Vaccinations

The U.S. Supreme Court yesterday denied review in F.F. v. New York, (Docket No. 21-1003, certiorari denied 5/23/2022). (Order List). In the case, a New York state appellate court rejected parents' constitutional challenges to New York's repeal of the religious exemption from mandatory vaccination for school children. (See prior posting). SCOTUSblog's case page has links to the filings in the case.  Christian Post reports on the denial of certiorari.

Court Denies Relief To Air Force Members With Religious Objections To COVID Vaccine

In a 61-page opinion in Roth v. Austin, (D NE, May 18, 2022), a Nebraska federal district court denied a preliminary injunction to 36 members of the Air Force, Air Force Reserve and Air National Guard who have religious objections to complying with the military's COVID vaccine mandate. The court said in part:

One objection made by several airmen is that part of the science giving rise to approved COVID19 vaccines involved use of research derived from aborted fetal cell tissue that was developed decades ago. Certain major religions of the world have long strenuously objected to the use of such research in medicine. However, having lost that battle in significant regard over the decades, many of those same religions have concluded that the remote impact of what they deem to be religiously or ethically objectionable research utilized for the vaccines does not support refusal to take the vaccines on religious grounds today....

The Court concludes, at least at this preliminary stage, that the Air Force has demonstrated it has a compelling interest in the health and readiness of its forces, including individual service members like Plaintiffs. The Court also concludes that the Air Force’s COVID-19 vaccination mandate is the least restrictive means of furthering that compelling interest, as to both the Air Force generally and as to individual Plaintiffs in particular. The Air Force has demonstrated that its process for consideration of religious exemptions was not simply “theater” or “a sham,” but was a process that adhered to the requirements of the law, most specifically RFRA. These conclusions mean that Plaintiffs do not have sufficient likelihood of success on the merits of either their RFRA claim or their Free Exercise of Religion claim to warrant issuance of a preliminary injunction.

Yesterday a notice of appeal to the U.S. 8th Circuit Court of Appeals was filed.

Space Force Captain With Religious Objections To Vaccine Mandate Is Denied Injunction

In Creghan v. Austin, (D DC, May 12, 2022), the D.C. federal district court refused to grant a preliminary injunction to a captain in the U.S. Space Force who has religious objections to the military's COVID vaccine mandate,  The military refused to grant her a religious accommodation, but has not taken steps to separate from the military. The court said in part:

As the Court explained in a similar case, requests for religious exemptions from military-mandated medical requirements “raise particularly difficult questions that implicate a storm of colliding constitutional interests.” Navy SEAL v. Austin, 2022 WL 1294486, at *1 (D.D.C. Apr. 29, 2022). Although this case is much closer than Navy SEAL, the Court remains concerned that it lacks the competence to “evaluate the merits of military [epidemiological and tactical] expertise” or to “weigh technical issues of public health and immunology” necessary to resolve the case. Id. at *5. Justiciability is all the more uncertain given the unfixed, evolving science on which this vaccination mandate is based. These concerns permeate the merits of Plaintiff’s claims as well.

Intervenors Say USAF Senior Leaders Told To Deny All Religious Exemptions To Vaccine Mandate

In a Memorandum In Support of a Preliminary Injunction (full text) filed on behalf of 230 intervening plaintiffs in Doster v. Kendall, (SD OH, filed 5/3/2022), plaintiffs allege:

The 2021 CORONA Conference was held at  the United States Air Force Academy. (Id.) Whistleblowers have reported that all Chaplains and all persons other than those MAJCOM commanders responsible for adjudicating accommodation requests to the Air Force’s vaccine mandate, were asked to leave the room, so that the Secretary of the Air Force’s expectations concerning religious accommodation requests could be communicated to Air Force senior leaders....  Upon information and belief, the Secretary of the Air Force and/or his designees, communicated that no religious accommodations could or should be approved for anyone who would be remaining in the Department of the Air Force....

As of the date of the Intervening Complaint, the Department of the Air Force has received thousands of requests for religious accommodation, has only approved 42 – all of them at the end of their careers, who were otherwise eligible for an administrative exemption, and has denied 5,129 initial requests; and 1,692 final appeals, for a total of 6, 821 denials. In the meantime, the Air Force currently has granted 1,013 medical exemptions, and 1,273 administrative exemptions....  As of April 12, the Air Force has administratively separated 261 active-duty Airmen.... The granting of more than two thousand medical and administrative exemptions belies any assertion that vaccination is mission-critical and that no exemptions can be granted....

(See prior related posting.) Coffee or Die Magazine reports on the filing.