DOJ Chills Chances That Justices Weigh Worker Vaccine Mandates

The US Supreme Court has less incentive to hear a case asking whether a now-repealed New York vaccine mandate caused healthcare employers to violate federal requirements for faith-based accommodations, after the Justice Department discouraged review.

The US Solicitor General, in an amicus brief this week, said Does v. Hochul isn’t the right candidate to address whether a state mandate that carries financial penalties can override Title VII of the 1964 Civil Rights Act and the US Constitution’s Supremacy Clause. Title VII requires employers to grant reasonable religious accommodations to their workers unless they pose an undue hardship.

Even if review is denied, at least three other pending petitions concern undue hardship risks for employers complying with vaccine mandates, including one challenging the same New York directive. These may offer the high court more opportunity to expand religious workers’ protections.

Review of any of the cases would test the boundaries of the justices’ unanimous 2023 Groff v. DeJoy decision, which raised the bar for denying religious accommodations. It requires employers to grant reasonable accommodations unless they can show it would cause “substantial increased costs” to their business.

Hochul or another petition, Braccia v. Northwell Health Systems, could address whether financial penalties employers would receive for noncompliance with a state vaccine policy can constitute undue hardship, employment attorneys said. The court’s conservative majority—and its inclination to support religious liberty violation claims—suggests an employee-friendly ruling is likely, they said.

“This Supreme Court has been very focused on expanding religious freedoms and the ability for individuals to exercise their religious rights, maybe at the expense of other rights,” said Sara Lewenstein, an attorney at Nilan Johnson Lewis PA.

A ruling that Title VII and the Supremacy Clause preempt state mandates would serve as a significant shield against state policies that collide with federal statutory or constitutional anti-bias requirements, said Hiram Sasser, executive general counsel of conservative legal group First Liberty Institute.

Holding otherwise risks setting up an “open rebellion,” with state legislatures feeling empowered to set a patchwork of anti-bias requirements to sidestep federal law, said Sasser, a co-counsel for the plaintiff in Groff.

Scope Disputed

The petitioners in both Hochul and Braccia, who were terminated after declining to get vaccinated, claimed the US Court of Appeals for the Second Circuit’s unpublished orders in their respective cases allowed state policy on vaccine exemption requests to override Title VII.

But at least in Hochul, the DOJ disagreed. The court’s unpublished order never held that the Covid-19-era mandate violated Title VII, and what’s more, there’s no circuit split on the underlying legal issues for the Supreme Court to address, the government wrote.

State officials and the workers’ employers have argued that a high court review of the New York policy, repealed in 2023, is unnecessary. They’ve also said the plaintiffs misrepresented its scope, because it allowed reasonable accommodations like reassigning unvaccinated workers to safer roles.

The solicitor general’s brief backed that argument, saying Hochul doesn’t indicate whether the petitioners sought, or their employers refused, to consider other accommodations besides remaining unvaccinated and staying in their safety-sensitive roles.

Despite the government’s stance, Joe Schmitt of Nilan Johnson Lewis PA said the Supreme Court could still use Hochul to clarify that a policy imposing “consequences on an employer for a particular reasonable accommodation is preempted by Title VII because that’s a de facto” conflict between state and federal law.

Balancing Act

The preemption issue was previously before the court.

In a 2021 dissent, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch said they would’ve ruled for religious workers challenging a similar Maine mandate. But Justices Brett Kavanaugh and Amy Coney Barrett agreed with the majority not to intervene because the case’s procedural posture prevented addressing the merits.

Employment attorneys identified key interests a review of the dispute must balance: the rights of religious workers and an accommodation’s impact on the business; a state’s public health and safety regulatory authority; and consistent federal civil rights enforcement.

Courts typically give deference to employers in safety-sensitive or patient-care settings, and “public health and safety is one of the traditional police powers of states,” Lewenstein said.

A national standard that doesn’t acknowledge the unique nature of the “health and safety sphere” risks disrupting the entire anti-bias legal landscape, said Dawn Reddy Solowey, a partner at Seyfarth Shaw LLP. “New York was hit extremely hard at a time when other states weren’t experiencing the full brunt of the pandemic yet,” she said.

Other Petitions

A recent Bloomberg Law analysis of circuit decisions citing Groff shows that patient-facing workers challenging adverse job actions over vaccine rules struggle to get their cases to a jury.

Several circuits have held that the health and safety, and logistical burdens associated with managing unvaccinated staff under a state-regulated mandate constitute hardship. These include the Ninth Circuit’s dismissal of a group of firefighters’ suit in Petersen v. Snohomish Regional Fire and Rescue, now on appeal at the Supreme Court.

Another high court petition related to vaccine mandates, Miller v. Charleston Area Medical Center, asked whether an accommodation request can be denied on undue hardship grounds without an employer conducting an individualized assessment of potential alternatives.

A terminated respiratory therapist is challenging an unpublished Fourth Circuit order that remaining unvaccinated while treating patients in-person constitutes hardship. He unsuccessfully argued that CAMC should’ve done an extensive search for alternative accommodations. CAMC waived its right to respond to the petition.

Employers should engage in an interactive process when considering alternative accommodations, attorneys said, even though Miller reinforces it’s not mandatory under Title VII, especially when an accommodation would affect essential job functions.

Looking ahead, Schmitt isn’t convinced Miller is “a particularly strong petition” to address the interactive process issue in the absence of a circuit split.

“The traditional response would be to allow the law to develop a bit before having the Supreme Court weigh in,” he said.