We the Patriots USA, Inc. v. Hochul Dr. A. v. Hochul ( 2021 )

21-2179; 21-2566
We The Patriots USA, Inc. v. Hochul; Dr. A. v. Hochul
In the
United States Court of Appeals
For the Second Circuit
______________
August Term, 2021
(Argued: October 27, 2021 Decided: November 12, 2021)
Docket No. 21-2179
______________
WE THE PATRIOTS USA, INC., DIANE BONO, MICHELLE MELENDEZ,
MICHELLE SYNAKOWSKI,
Plaintiffs-Appellants,
–v.–
KATHLEEN HOCHUL, HOWARD A. ZUCKER, M.D.,
Defendants-Appellees.
___________________________
Docket No. 21-2566
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DR. A., NURSE A., DR. C., NURSE D., DR. F., DR. G., THERAPIST I.,
DR. J., NURSE J., DR. M., NURSE N., DR. O., DR. P., TECHNOLOGIST P., DR. S.,
NURSE S., PHYSICIAN LIAISON X.,
Plaintiffs-Appellees,
–v.–
KATHY HOCHUL, GOVERNOR OF THE STATE OF NEW YORK, IN HER OFFICIAL
CAPACITY, DR. HOWARD A. ZUCKER, COMMISSIONER OF THE NEW YORK STATE
DEPARTMENT OF HEALTH, IN HIS OFFICIAL CAPACITY, LETITIA JAMES,
ATTORNEY GENERAL OF THE STATE OF NEW YORK, IN HER OFFICIAL CAPACITY,
Defendants-Appellants.
B e f o r e:
WALKER, SACK, and CARNEY, Circuit Judges.
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CAMERON L. ATKINSON (Norman A. Pattis, Earl A. Voss, on
the brief), Pattis & Smith, LLC, New Haven, CT, for
Plaintiffs-Appellants We The Patriots USA, Inc. et al. (in
No. 21-2179).
STEVEN C. WU, Deputy Solicitor General (Barbara D.
Underwood, Mark S. Grube, on the brief) for Letitia
James, Attorney General for the State of New York,
New York, NY, for Defendants-Appellants (in No. 21-
2566) and Defendants-Appellees (in No. 21-2179) Kathleen
Hochul et al.
CHRISTOPHER A. FERRARA (Michael McHale, Stephen M.
Crampton, on the brief), Thomas More Society,
Chicago, IL, for Plaintiffs-Appellees Dr. A. et al. (in No.
21-2566).
Alex J. Luchenister, Richard B. Katskee, Americans United
for Separation of Church and State, Washington, D.C.;
Daniel Mach, Heather L. Weaver, Lindsey Kaley,
American Civil Liberties Union Foundation,
Washington, D.C. & New York, NY; Christopher
Dunn, Beth Haroules, Arthur Eisenberg, Amy Belsher,
New York Civil Liberties Union Foundation, New
York, NY, for Amici Curiae (in No. 21-2179) Americans
United for Separation of Church and State, American Civil
Liberties Union, New York Civil Liberties Union, Central
Conference of American Rabbis, Global Justice Institute,
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Metropolitan Community Churches, Men of Reform
Judaism, Methodist Federation for Social Action, Muslim
Advocates, National Council of Jewish Women,
Reconstructionist Rabbinical Association, Union for
Reform Judaism, and Women of Reform Judaism.
Mark D. Harris, Shiloh Rainwater, Proskauer Rose LLP, New
York, NY, for Amicus Curiae (in No. 21-2179) Greater
New York Hospital Association.
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PER CURIAM:
We write to clarify our opinion in We The Patriots USA, Inc. v. Hochul, No. 21-
2179, and Dr. A. v. Hochul, No. 21-2566, which we heard and decided in tandem. 2021
WL 5121983 (2d Cir. Nov. 4, 2021). We do so in light of the text of the recent order of the
district court in Dr. A. v. Hochul, vacating the preliminary injunction at issue. No. 1:21-
CV-1009 (N.D.N.Y. Nov. 5, 2021). The district court there wrote that the Dr. A. Plaintiffs
“no longer need” a preliminary injunction because Section 2.61 “does not prevent
employees from seeking a religious accommodation allowing them to continue working
consistent with the Rule, while avoiding the vaccination requirement.” Id. (quoting We
the Patriots USA, Inc., 2021 WL 5121983, at *17).
A reader might erroneously conclude from this text that, consistent with our
opinion, employers may grant religious accommodations that allow employees to
continue working, unvaccinated, at positions in which they “engage in activities such
that if they were infected with COVID-19, they could potentially expose other covered
personnel, patients or residents to the disease.” 10 N.Y.C.R.R. § 2.61 (definition of
“personnel”). In our opinion, however, we stated that “Section 2.61, on its face, does not
bar an employer from providing an employee with a reasonable accommodation that
removes the individual from the scope of the Rule.” 2021 WL 5121983, at *17 (emphasis
added). In other words, it may be possible under the Rule for an employer to
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accommodate—not exempt—employees with religious objections, by employing them in a
manner that removes them from the Rule’s definition of “personnel.” Id. Such an
accommodation would have the effect under the Rule of permitting such employees to
remain unvaccinated while employed.
Of course, Title VII does not obligate an employer to grant an accommodation
that would cause “undue hardship on the conduct of the employer’s business.” See 42
U.S.C. § 2000e(j). And, as we also observed in our opinion, “Contrary to the Dr. A.
Plaintiffs’ interpretation of the statute, Title VII does not require covered entities to
provide the accommodation that Plaintiffs prefer—in this case, a blanket religious
exemption allowing them to continue working at their current positions unvaccinated.”
2021 WL 5121983, at *17. To repeat: if a medically eligible employee’s work assignments
mean that she qualifies as “personnel,” she is covered by the Rule and her employer
must “continuously require” that she is vaccinated against COVID-19. 10 N.Y.C.R.R.
§ 2.61. As we observed, this requirement runs closely parallel to the longstanding New
York State requirements, subject to no religious exemption, that medically eligible
healthcare employees be vaccinated against rubella and measles. 2021 WL 5121983, at
*13.
The preliminary injunction entered by the district court in Dr. A. v. Hochul on
October 12, 2021, has been vacated. See We The Patriots USA, Inc. v. Hochul, No. 21-2179,
and Dr. A. v. Hochul, No. 21-2566, 2021 WL 5103443, at *1 (2d Cir. Oct. 29, 2021). New
York State’s emergency rule requiring that healthcare facilities “continuously require”
that certain medically eligible employees—those covered by the Rule’s definition of
“personnel”—are vaccinated against COVID-19, is currently in effect. 10 N.Y.C.R.R.
§ 2.61. We caution further that our opinion addressed only the likelihood of success on
the merits of Plaintiffs’ claims; it did not provide our court’s definitive determination of
the merits of those claims.
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In the interest of judicial economy, we direct the Clerk of Court to refer any
further proceedings in these two matters to this panel.
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