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New York Health Care Workers Appeal Lawsuit Against Shot Mandate

NEW YORK, NY – Liberty Counsel will appeal to the Second Circuit Court of Appeals on behalf of five New York health care workers against Governor Kathy Hochul, Department of Health Commissioner Dr. Howard A. Zucker, Trinity Health, Inc., New York Presbyterian Healthcare System, Inc. (NYP), and Westchester Medical Center Advanced Physician Services, P.C., regarding the state’s attempt to ignore federal law and remove religious exemptions and accommodations from unlawful COVID shot mandates for health care workers.
U.S. District Judge Ann Donnelly dismissed John Does 1-2, Jane Does 1-3 v. Hochul, and appears to ignore the fact that all health care workers are protected by Title VII of the Civil Rights Act which protects the religious rights of employees. State workers are also protected under the First Amendment.
However, Judge Donnelly wrote that the mandate “is neutral on its face” because “it does not refer to religion at all, and applies to all persons employed or affiliated with a covered entity who could potentially expose other covered personnel, patients or residents to COVID-19; the only exception is for employees with medical conditions that qualify for a medical exemption.” This is not the legal standard. Since New York provides for medical exemptions, refusing to provide for religious exemptions is discriminatory. 
The judge also states that “requiring someone with a religious objection to be vaccinated does not endanger that person’s health, but clearly protects that employee, patients and elderly residents, as well as other employees from infection.” This statement is contradicted by the facts and science and is inappropriate at a motion to dismiss stage, where the judge is required to assume all well-pled facts to be true.
The judge also includes reports and other information from the Centers for Disease Control and Prevention (CDC) and other “reliable public health authorities” because they are “not subject to reasonable dispute” and come from “dependable public health authorities.” The remarkable “reliability” she finds in the CDC and state health authorities is supported by statements of numerous political advocacy organizations in the medical profession, including statements from the AMA, the American Association of Critical Care Nurses, and the American College of Occupational and Environmental Medicine. The court also cites a press release from the NY Health Department claiming that the COVID shot was “so effective” that “unvaccinated New Yorkers were eleven times more likely to be hospitalized and eight times more likely to be diagnosed with COVID-19 than those who were fully vaccinated.” None of these statements are appropriate at a motion to dismiss consideration.
The “Mandatory COVID-19 Vaccination Policy” applies to health care workers in all “hospitals, nursing homes, diagnostic and treatment centers, adult care facilities, certified home health agencies, hospices, long-term home health care programs, AIDS home care programs, licensed home care service agencies and limited licensed home care service agencies.” On August 16, 2021, Governor Hochul announced that the state will now require health care workers to accept or receive one of the three currently available COVID-19 injections to remain employed in the healthcare profession. The deadline for them to become fully vaccinated was Monday, September 27, 2021, for hospital employees and October 7, 2021 for other facilities.
Though Governor Hochul’s announcement initially indicated that there would be “limited exceptions for workers with religious or medical reasons,” the State’s Public Health and Health Planning Council eliminated an exemption and accommodation for religious reasons on August 26.  In fact, under the state’s rule change, the only exemptions permitted in New York will be for medical reasons documented by a physician or certified nurse practitioner.

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