Federal appeals court judges questioned whether New York City’s upcoming revocation of its Covid-19 vaccine mandate for city employees shuts the door on a bid to block the policy brought by workers and a religious advocacy group.
Judges Eunice Lee and Myrna Perez pressed the attorney for the workers and New Yorkers for Religious Liberty Inc. on the city’s policy change during oral argument Wednesday at the US Court of Appeals for the Second Circuit.
The two Biden-appointed judges focused on the possibility that the vaccine policy rollback—even if it doesn’t obviate the workers’ injunction request—prevents them from showing they suffered harm that only a court order can fix.
“If we were to agree that it wasn’t moot, we could still find for you that there was no irreparable harm, right?” Perez said. “Because we could say all of the injuries that you’re alleging are financial and can be dealt with after the fact.”
A three-judge Second Circuit panel is considering the workers’ request for an injunction against New York City’s soon-to-be defunct vaccine mandate in a case that consolidated three lawsuits challenging the policy on First Amendment grounds. The workers have repeatedly failed to convince courts to halt the mandate, including coming up short twice in efforts to get the US Supreme Court to block it while they litigate the dispute in lower courts.
New York City Mayor Eric Adams announced this week that the Covid vaccine mandate for municipal workers will end Feb. 10. Adams halted the shot requirement for private-sector workers in the city in November.
The city’s enforcement of the revocation of the municipal employee mandate is tied to the irreparable harm the workers have suffered, their attorney, John Bursch of the Alliance Defending Freedom, said during oral argument.
Teachers who were previously fired for not getting the shot were told that they can reapply for their jobs. But the city locked them out of their school accounts, preventing them from accessing what they’d actually need to apply, such as model lesson plans, supervisor information, and letters of recommendation, he said.
New York City Law Department attorney Susan Paulson said she didn’t know about any account lockouts, drawing an admonition from Judge Dennis Jacobs to look into the situation.
“Because a big part of the equities of what you’re arguing is that they’re free to seek reinstatement,” the George H.W. Bush-appointed judge said. “But if they’re not, I’m not sure of all the legal ramifications, but it suggests a certain dishonesty in the presentation of the case.”
The Second Circuit ruled in 2021 that New York’s public worker vaccine mandate wasn’t on its face a violation of the First Amendment, but ordered the city to re-review religious exemption requests to ensure it was constitutionally applied.
The workers’ lawyer told the court Wednesday that New York hasn’t been following that ruling’s requirement that the city must adhere to federal, state, and local laws forbidding religious discrimination.
The city rejected vaccine exemption claims that were based on someone’s personal belief rather than an organized religion, Bursch said. It also didn’t honor religious conversions, and used the requirement that exemptions not be unduly burdensome as a “rubber stamp” to reject some requests, he said.
Paulson countered that the city made a good faith effort to follow the court’s instructions when it re-reviewed 10,000 religious exemption requests and appeals of denials. A worker who thought there was an error could go to court and bring claims to challenge those individual determinations, she said.
“But there is nothing that suggests the citywide panel process was violative of the First Amendment,” Paulson said.
The case is New Yorkers for Religious Liberty, Inc. v. City of New York, 2d Cir., No. 22-01801, oral argument held 2/8/23.
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