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Unvaccinated health care workers push 2nd Circuit for religious exemption

No major religion agrees that the vaccine against Covid-19 poses a concern but that hasn't stopped a faction of Christian health care workers from using their faith as a basis to oppose New York's immunization mandate.

MANHATTAN (CN) — Days after it dissolved an injunction that would let them skirt New York's vaccination rules on the basis of religious objection, the Second Circuit heard arguments Wednesday on whether the First Amendment is on their side.

More than 650,000 workers at hospitals and nursing homes in the Empire State had until Monday to get their first vaccine dose as part of a mandate that is among the strictest in the country, providing no option to test weekly rather than get vaccinated and contemplating no special religious dispensation.

The mandate applies to not just medical professionals like doctors and nurses but all employees of a given health care institutions, including food service workers, administrators and cleaners. Employees who refuse the Covid vaccine shots face suspensions and termination. Workers fired for their refusal to be vaccinated are not eligible for unemployment insurance without a doctor-approved request for medical accommodation.

Among several court challenges to the mandate, the Second Circuit held a 26-minute hearing Wednesday in a case led by a group called We The Patriots USA on behalf of two Long Island nurses and a health care worker in Syracuse who say the vaccine against Covid-19 goes against their Christian faith.

Across the religious spectrum, there is near unanimity among major churches and denominations that every person eligible should immunize themselves against the novel coronavirus, which has killed more than 4.7 million people around the world as of Wednesday.

Those claiming religious objection point to the remote connection that the vaccines have to laboratory use of a fetal cell line harvested from aborted fetuses acquired in the 1970s and 1980s. The Long Island plaintiffs in the case at hand have lobbed the same objection but were denied an injunction in the Eastern District of New York.

As they appeal for a reversal, they are among thousands of unvaccinated health care workers still hanging on to their jobs because of an injunction secured through a separate federal lawsuit in Utica. These cases are unrelated to yet another class of challenges that erupted from New York City's mandate governing municipal workers. The city's mandate is set to take effect on Oct. 4 after the Second Circuit dissolved an injunction initially awarded to a group of vaccine-averse teachers.

For the nurses and others involved in the Long Island case, their attorney told the federal appeals court Wednesday, “it’s only a matter of time” until they are fired on a rolling basis for refusing to get the Covid-19 vaccine.

Pattis & Smith attorney Cameron Atkinson includes this photo of himself on a website that touts him as a Christian and "the new sheriff in town." (Credit: cameronatkinson.com via Courthouse News)

“My hope would be that if it this court issued an injunction, that it would carry the necessary weight to curb the damage that governor Hochul is doing by her public comments,” said Cameron Atkinson, who is with the New Haven, Connecticut, firm Pattis & Smith.

The statements by Governor Kathy Hochul that Atkinson described occurred last weekend while Hochul told a crowd at Christian Cultural Center in Brooklyn to treat the Covid jab as a gift “from God to us.”

“We are not through this pandemic,” Hochul said on Sunday, wearing a gold necklace spelling out the word “Vaxed.” “I wished we were but I prayed a lot to God during this time and you know what — God did answer our prayers. He made the smartest men and women, the scientists, the doctors, the researchers — he made them come up with a vaccine."

Deputy New York Solicitor General Steven Wu defended the state’s vaccine mandate on public interest grounds at Wednesday’s hearing.

“What this department was responding to was the very serious concern raised by the delta variant, which is far more transmissible than previous variants, has really swamped the diagnoses that are taking place across the state,” Wu told the appeals panel. “And this order was issued to ensure the health care workers in these facilities who are dealing with particularly vulnerable populations will be protected themselves and will not themselves be a vector for further spread in these facilities.”

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Wu argued that the broad religious exemptions to the Covid-19 vaccine sought by the health care workers in the case are not comparable to the narrow medical exemption granted by the state.

“The scope of the medical exemption is limited to those who have very serious contraindications to Covid-19 or to its components, which are severe allergic reactions of a certain type,” he said.

Wu noted that the availability of a medical exemption but not a religious exemption to Covid-19 vaccine mandate is consistent for the longstanding requirement that health care workers be vaccinated against measles and rubella, which also do not contain a religious exemption.

The three-judge panel indicated that the arguments on appeal would be better served with more facts and statistics.

“I know it happened so quickly, you can’t put it together the way you put together an antitrust case, we have precious few real facts to work on,” U.S. Circuit Judge Pierre Leval said Wednesday.

“Wouldn’t it be helpful if we had some factual material to go on,” the Clinton-appointed appellate judge quipped. “Let’s get the CDC head and get him under oath and have him say what he said on television.”

Judge Leval was joined on the panel by Senior U.S. Circuit Judge Robert Sack, a Clinton appointee, and Michael Park, a Trump appointee.

As of Wednesday morning, the governor’s office reported that 87% hospital staff are fully vaccinated, with preliminary data indicating at least 92% of nursing home staff receiving at least one Covid-19 vaccine dose.

The mandate comes as medical facilities are already hamstrung from staff shortages fueled in part by workers retiring and employees seeking other jobs after a year and a half of the pandemic.

Governor Hochul signed an executive order Monday to alleviate potential staffing shortages in hospitals and other health care facilities statewide. The executive order expands the eligible health care labor pool and allows additional health care workers to administer Covid-19 testing and vaccinations.

Hochul also drafted plans to summon help from National Guard members with medical training, retirees or vaccinated workers from outside the state. Health care facilities on Tuesday reported suspensions of unvaccinated employees, and some had scaled back services in anticipation of fewer workers.

About a dozen states have vaccination mandates covering health care workers in hospitals, long-term care facilities or both. Some allow exemptions on medical or religious grounds, but those employees often must submit to regular Covid-19 testing. States that have set such requirements tend to have high vaccination rates already. The highest rates are concentrated in the Northeast, the lowest ones in the South and Midwest.

The Biden administration also will require the roughly 17 million workers at health facilities that receive federal Medicare or Medicaid to be fully vaccinated under a rule still being developed.

In New York City, all public school teachers and staff are required be vaccinated by 5 p.m. Friday, Oct. 1, so that by Monday, Oct. 4, 100% of educators and staff in the city’s buildings will be vaccinated.

“The three-judge panel definitively, once and for all, said the federal appeals court, the City of New York has a right to put a vaccine mandate in place for the adults who work in our public schools, period,” Mayor Bill de Blasio said on Tuesday morning during an appearance on the “Inside City Hall” talk show.

“End of process. Nothing else to discuss. Federal appeals exhausted, done,” the mayor added. “The mandate moves forward.”

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