We The Patriots USA, Inc. v. Hochul

• Decision Date: 12 November 2021
• Docket Number: Docket No. 21-2566,August Term, 2021,Docket No. 21-2179
• Citation: 17 F.4th 368
• Parties: WE THE PATRIOTS USA, INC., Diane Bono, Michelle Melendez, Michelle Synakowski, Plaintiffs-Appellants, v. Kathleen HOCHUL, Howard A. Zucker, M.D., Defendants-Appellees. 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.
• Court: U.S. Court of Appeals — Second Circuit

17 F.4th 368

WE THE PATRIOTS USA, INC., Diane Bono, Michelle Melendez, Michelle Synakowski, Plaintiffs-Appellants,

v.Kathleen HOCHUL, Howard A. Zucker, M.D., Defendants-Appellees.

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.

Docket No. 21-2179

August Term, 2021

Docket No. 21-2566

United States Court of Appeals, Second Circuit.

Argued: October 27, 2021

Decided: November 12, 2021

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, 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.

Before: Walker, Sack, and Carney, Circuit Judges.

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. ––– F.4th ––––, 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., ––– F.4th at ––––, 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 ." ––– F.4th at ––––, 2021 WL 5121983, at *17 (emphasis added). In other words, it may be possible under the Rule for an employer to 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." ––– F.4th at ––––, 2021 WL 5121983, at *17. To repeat: if a medically eligible employee's work assignments mean...