Challenges to State and Local Vaccine Mandates in New York

By Mary Beth Morrissey, Thomas G. Merrill and Christopher C. Palermo

Challenges to State and Local Vaccine Mandates in New York

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In various places throughout the country, and here in New York, state and local governments have adopted COVID-19 vaccine mandates in hopes of bringing an end to the pandemic, which, as of October 1, 2021, has killed more than 700,000 people in the United States. Many legal organizations have weighed in with their positions on a vaccine mandate, including the New York State Bar Association, whose Executive Committee approved a resolution in August 2021 that health care workers must be vaccinated. The state and local mandates have predictably prompted lawsuits pitting state and local governments seeking to act to protect public health against individuals and organizations asserting constitutional liberties. The October 12th Federal District court order enjoining enforcement of New York’s emergency health regulations mandating vaccination for health care workers and eliminating religious exemptions is the most recent development in the vaccine mandate litigation in New York.[1]

The legal landscape regarding vaccine mandates continues to change almost daily, as challenges make their way through the court system and new cases are brought. In addition, the status of vaccines continues to evolve, with the U.S. Food and Drug Administration approving the Pfizer-BioNTech COVID-19 vaccine in late August[2] and expecting to receive Emergency Use Authorization applications for vaccines for children under 12 in the coming months.[3]   Various cases have been filed seeking to invalidate New York State and New York City vaccine mandates as of early October, and more developments are expected in the weeks and months ahead.[4]

At the state level, the New York State Department of Health issued a vaccine mandate requiring personnel at general hospitals and nursing homes to receive their first COVID-19 vaccination by September 27, 2021.[5]  The state rule exempts persons for whom vaccination poses a documented medical risk of harm, but provides no exemption to those who object to vaccination on religious grounds. The New York State Office of Court Administration has also issued a vaccine mandate for judges and court personnel, which has also been challenged.

In addition, the New York City Department of Health and Mental Hygiene issued an order prohibiting anyone from working in or visiting a New York City school without providing proof that they have received at least one dose of COVID-19 vaccination. The order, which has been revised twice since it was originally issued in August and most recently was approved by the city’s board of health on September 17, 2021, currently provides no opportunity to undergo weekly testing in lieu of vaccination, and states that it should not be construed “to prohibit any reasonable accommodations otherwise required by law.”[6]

Unions and state and city employees have challenged these state and local mandates on various grounds. The absence of a religious exemption to the mandates has been the focus of several lawsuits. Two cases pending in federal court allege First Amendment violations because the emergency rule does not allow a religious exemption. In Dr. A v. Hochul, brought by 17 health care workers in the Northern District of New York, the court granted a temporary restraining order barring enforcement of the mandate against anyone claiming a religious objection.[7] On October 12, 2021, the court issued its Memorandum and Order granting plaintiffs preliminary injunctive relief, enjoining the NYS Department of Health from enforcing the requirement that health care employers deny religious exemptions from COVID-19 vaccination. Balancing the hardships to the plaintiffs and the public interest, the court found that the State’s mandate and denial of religious exemptions under the applicable Health Council’s emergency regulations is not neutral and conflicts with healthcare workers’ federally protected right to seek a religious accommodation.[8]  In We the Patriots USA, Inc. v. Hochul, the Second Circuit issued a temporary restraining order requiring the state to permit religious exemptions to the COVID-19 vaccine mandate. The Second Circuit is scheduled to hear argument on plaintiff’s application for a preliminary injunction on October 14.[9]

A group of New York City Department of Education employees has challenged the city’s Department of Education vaccine mandate in Maniscalco v. New York City Dep’t of Educ., asserting that it violated their substantive due process and equal protection rights under the 14th Amendment, and was arbitrary and capricious. The district court denied plaintiffs’ motion for a preliminary injunction.[10] While a federal appellate judge granted a temporary restraining order to allow a panel of three appellate judges to decide whether to grant plaintiffs’ application for an injunction pending the outcome of her suit,[11] the appellate panel denied the preliminary injunction application on September 27, 2021, allowing the city to begin enforcing the vaccine requirement on September 28, only a day after it was originally to take effect.[12]  On October 1, 2021, U.S. Supreme Court Associate Justice Sonia Sotomayor denied without explanation or statement an emergency request to enjoin the city Department of Education’s vaccine mandate.[13]  On October 12, 2021, a Southern District of New York judge similarly rejected claims that the city Department of Education’s vaccine mandate violated public school teachers’ religious rights.[14]

One can anticipate significant further litigation challenging federal and state vaccination mandates, particularly as the Biden administration’s recently announced vaccination mandates are implemented.[15] In addition, FDA emergency use authorization of vaccines for children, expected to occur in the coming months, will doubtless result in litigation over religious exemptions and other issues.

Mandates for other vaccinations have long existed for students. These mandates were similarly challenged by parents of children who, like the current petitioners, believed that they violated their liberty and religious rights. In Phillips v. City of New York,[16] the Second Circuit rejected a substantive due process claim brought by several parents whose children were excluded from school because they were unvaccinated, noting that the Supreme Court had, long ago, determined that states in the exercise of their police powers can mandate vaccinations when necessary to protect public health.[17] Most states, but not all,[18] statutorily grant an exemption to students who object to vaccination requirements because of sincerely held religious beliefs.  Courts have held that the First Amendment, however, does not require that they do so.[19]  In Phillips, the Second Circuit also rejected the claims of two families that were based on the free exercise clause, finding the mandates to be neutral and generally applicable to all students. In doing so, it quoted dicta from the United States Supreme Court in Prince v. Massachusetts[20] commenting that “the right to practice religion freely does not include the liberty to expose the community … to communicable disease ….”[21]

The religious exemption has emerged as perhaps the most controversial issue in light of the present pandemic environment and actions taken by state and local governments to require vaccination.  Although currently “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes),’”[22] advocates for religious freedom have been arguing that courts should strictly scrutinize any law that interferes with the practice of a religion.  The Supreme Court was asked in Fulton v. City of Philadelphia[23] to overturn Employment Div. v. Smith,[24] where it held that neutral and generally applicable laws need only be rational.  Although it declined to do so, remanding the case for other reasons in a unanimous opinion, three justices in their concurrence stated that any infringement of the free exercise of religion needed to be narrowly tailored and justified by a compelling government interest.[25] Given that opinion, and the likelihood of the Supreme Court ultimately hearing one of the cases involving a vaccine mandate, it remains to be seen whether today’s court would follow Smith when reviewing a rule mandating that everyone, regardless of their religious beliefs, be vaccinated and conclude that such a mandate was constitutional as a rational exercise of power. Alternatively, if the court were to overturn Smith and apply a “strict scrutiny” test, it is unclear whether it would find that the goal of containing the COVID-19 virus was a substantial government interest justifying the vaccine mandate.

Both for those interested in the legality of vaccine mandates and those interested in the United States Supreme Court’s First Amendment jurisprudence, the judicial response to state and federal vaccine mandates bears continued watching.

Mary Beth Quaranta Morrissey, PhD, MPH, JD, is a New York health care attorney and interdisciplinary research scholar. Dr. Morrissey holds a fellow appointment at Fordham University’s Global Healthcare Innovation Management Center and adjunct faculty appointments at Fordham University’s Graduate Schools and Yeshiva University’s Wurzweiler School of Social Work and she is the founder and president of the Collaborative for Palliative Care, New York. Morrissey has chaired two New York State Bar Association (NYSBA) Task Forces on issues related to the COVID pandemic including public health legal reforms and mandatory vaccination. She co-also chairs the NYSBA Health Law Section Public Health Law Committee.

Thomas G. Merrill is an attorney who was general counsel of New York City’s Department of Health and Mental Hygiene for more than 13 years, serving four different commissioners. He is currently an adjunct professor at the City University of New York.

Christopher Palermo is a litigation partner at Harris Beach.  He is a member of the Executive Committee of the Food, Drug and Cosmetic Law Section of the New York State Bar Association and is the Section’s Delegate to NYSBA’s House of Delegates.


[1] Dr. A v. Hochul, No. 1:21-CV-1009 (N.D.N.Y. Oct. 12, 2021)

[2] https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine (last visited Oct. 6, 2021).

[3] https://www.fda.gov/news-events/press-announcements/fda-will-follow-science-covid-19-vaccines-young-children (last visited Oct. 6, 2021).

[4] The information contained in this article is current as of October 12, 2021. Given the ever-changing landscape in this area, it is expected that there will be additional developments in pending and new litigation in the upcoming weeks and months.

[5] Prevention of COVID-19 Transmission by Covered Entities, 10 N.Y.C.R.R. § 2.61.

[6] https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-vaccination-requirement-doe-2.pdf  (last visited Oct. 6, 2021).

[7] Dr. A v. Hochul, No. 1:21-CV-1009, 2021 U.S. Dist. LEXIS 177761 (N.D.N.Y. Sept. 14, 2021).

[8] Dr. A v. Hochul, No. 1:21-CV-1009 (N.D.N.Y. Oct. 12, 2021)

[9] No. 21-2179, ECF No. 65 (Sept. 30, 2021).

[10] Maniscalco v. New York City Dep’t of Educ., No. 21-cv-5055, 2021 U.S. Dist. LEXIS 184971 (E.D.N.Y. Sept. 23, 2021).

[11] No. 21-2343, 2021 U.S. App. LEXIS 29329 (2d Cir. Sept. 24, 2021).

[12] No. 21-2343, 2021 U.S. App. LEXIS 29429 (2d Cir. Sept. 27, 2021).

[13] Supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21a50.html (last visited Oct. 6, 2021).

[14] Kane v. De Blasio, No. 1:21-CV-07863 (S.D.N.Y. Oct. 12, 2021.

[15] https://www.whitehouse.gov/covidplan/ (last visited Oct. 6, 2021).

[16] 775 F.3d 538 (2d Cir. 2015).

[17] Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[18] New York eliminated its religious exemption in 2019.  Other states that have expressly repealed religious exemptions include California, Maine, Mississippi and West Virginia.

[19] See, e.g., F.F. ex rel. Y.F. v. State, 66 Misc.3d 467 (Sup. Ct. Albany Cty. 2019).

[20] 321 U.S. 158, 166-167 (1944).

[21] 775 F.3d at 543.

[22] 494 U.S. 872, 879 (1990).

[23] 141 S.Ct. 1868 (2021).

[24] 494 U.S. 872 (1990).

[25] 141 S.Ct. at 1883 (Barrett, J., concurring).

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