Does v. Hochul
| Decision Date | 30 September 2022 |
| Docket Number | 21-CV-5067 (AMD) (TAM) |
| Parties | JOHN DOES 1-2, JANE DOES 1-3, JACK DOES 1-750, and JOAN DOES 1-750, Plaintiffs, v. KATHY HOCHUL, in her official capacity as Governor of the State of New York, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
On September 10, 2021, the plaintiffs filed this action against the defendants, together with an application for a temporary restraining order:(“TRO”) and a preliminary injunction, challenging the lawfulness of a New York State regulation that required most healthcare workers to be “fully vaccinated against COVID-19.” (ECF No. 1.) See N.Y. Comp. Codes R. & Regs., tit. 10, § 2.61 (“Section 2.61”). Before the Court are the defendants' motions to dismiss. (ECF Nos. 81, 82, 83, 84 87.) For the reasons that follow,:the defendants' motions are granted.
BACKGROUND[1]
The plaintiffs are five individuals identified as John and Jane Does. (ECF No. 1 ¶¶ 10-14.)[2] They bring this lawsuit against Governor Kathy Hochul and Commissioner Howard Zucker of the New York State Department of Health, in their official capacities (collectively, the “ ”), as well as three nonprofit corporations that operate healthcare facilities in New York-New York-Presbyterian Healthcare System, Inc. (“NYP”), Trinity Health, Inc. (“Trinity”) and Westchester Medical Center Advanced Physician Services (“WMC”) (together the “Private Defendants”). John Doe 2 and Jane Doe 1 were employed by NYP, Jane Doe 2 was employed by WMC and Jane Doe 3 was employed by Trinity.[3] (Id. ¶¶ 11-14.) John Doe 1 was the board president of an unnamed private, faith-based senior care facility.[4] (Id. ¶ 10.) As explained more fully below, the State issued Section 2.61 to address the spread of COVID-19 in healthcare facilities and nursing homes, because of the risks to patients, the elderly and front-line healthcare workers. The plaintiffs object to taking the vaccine on religious grounds and argue that requiring them to comply with Section 2.61 violates their rights.
It is the consensus of reliable public health authorities that the COVID-19 vaccine prevents the spread of the virus, and that healthcare professionals who work directly with vulnerable patients should be vaccinated. According to the CDC, [5] The CDC further advised that, “SARS-CoV-2 transmission between unvaccinated persons is the primary cause of continued spread.”[6]
Healthcare societies and organizations have called for “all health care and long-term care employers to require their employees to be vaccinated against COVID-19.”[7] In a July 26, 2021 press release, the American Medical Association stated, [8] The American Association of Critical-Care Nurses called for “all healthcare and long-term care employers to require every member of the healthcare team-employees and all credentialed and contracted providers-to be vaccinated against COVID-19 . . . we believe mandated vaccination is the best path to support the physical safety of patients, nurses, their colleagues, and their families and a means to prevent further trauma and moral injury imposed by the pandemic on our health care workforce.”[9] And on July 31, 2021, the American College of Occupational and Environmental Medicine recommended that the [10]
In August 2021, the COVID-19 pandemic was still surging in New York, with daily positive cases up over 1000% over the course of six weeks. (ECF No. 1-7 at 2.) In light of the continuing COVID-19 pandemic, then-Governor Andrew Cuomo announced on August 16, 2021, that “all healthcare workers in New York State” would be required to be vaccinated against COVID-19 by September 27, 2021. (Id.) On August 18, 2021, Commissioner Zucker issued a short-term “Order for Summary Action” (the “Emergency Order”) under New York Public Health Law § 16, because of “increased challenges and urgency for controlling the spread of [COVID-19]” in healthcare facilities due to vulnerable patient and resident populations, and the “unacceptably high risk” caused by unvaccinated personnel, in both “acquiring COVID-19 and transmitting such virus to colleagues and/or vulnerable patients or residents.” (ECF No. 1-8 at 2-3.)[11] Under the Emergency Order, “general hospitals and nursing homes” were required to ensure that their personnel were fully vaccinated against COVID-19, with limited exceptions for religious objections or medical contraindications. (Id. at 3.) The Emergency Order defined personnel as “All persons employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers, who engage in activities such that if they were infected with COVID-19, they could potentially expose, patients, residents, or personnel working for such entity to the disease.” (Id. at 3-4.) The Emergency Order included a medical exemption, in the form of a “reasonable accommodation,” for those employees for whom vaccination would be “detrimental,” based on “a specific pre-existing health condition,” as certified by a licensed physician or certified nurse practitioner. (Id. at 5.) In addition, the Emergency Order provided a religious exemption for employees with “a genuine and sincere religious belief contrary to the practice of immunization, subject to a reasonable accommodation by the employer.” (Id. at 5-6.) The Emergency Order required Covered Personnel to be “fully vaccinated,” and to have received the first dose by September 27, 2021. (Id. at 5.)
Three of the plaintiffs received religious exemptions: NYP granted Jane Doe 1's request, Trinity granted Jane Doe 3's request and NYP granted John Doe 2's request.[12] (ECF No. 1 ¶¶ 11-14, 81-93.)
On the same day that the Emergency Order was issued, the New York State Department of Health released the results of a first-in-the-nation vaccine effectiveness study, published by the CDC, finding 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.”[13] In the press release announcing the study, Commissioner Zucker said, “The findings of our research are clear: Vaccines provide the strongest protection for New Yorkers against getting infected or becoming hospitalized due to COVID-19.” (Id.) Moreover, the Commissioner noted the increase in COVID-19 cases and hospitalization in New York as a result of the Delta variant: “New Yorkers still need to remain vigilant as the Delta variant has led to increases in COVID-19 cases and hospitalizations.” (Id.) Thereafter, on August 23, 2021, the Food and Drug Administration approved the Pfizer vaccine for adults 16 years old and older; the vaccination had previously been authorized only under “emergency use authorization (EUA).”[14]The FDA stated, “[T]he public can be very confident that this vaccine meets the high standards for safety, effectiveness, and manufacturing quality the FDA requires of an approved product.” (Id.) On August 24, 2021, Governor Andrew Cuomo resigned, and Governor Hochul assumed office.[15]
On August 26, 2021, New York's Department of Health adopted emergency regulation 10 N.Y.C.R.R. § 2.61; the State's Public Health and Health Planning Council (the “PHHPC”), charged with issuing regulations “affecting the security of life or health or the preservation and improvement of public health” including those addressing the control of communicable diseases, N.Y. Pub. Health L. § 225(4), (5), issued Section 2.61. The PHHPC issued the following the Regulatory Impact Statement: ...
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