Brief in Opposition to Emergency Application — Dr. A v. Hochul

Record facts

Full text

No. 21A145 
In the 
Supreme Court of the United States 
______________________________ 
  
DR. A., et al., 
 
 
 
 
 
 
 
 
Applicants, 
v.  
KATHY HOCHUL, Governor of New York, et al., 
 
 
 
 
 
 
 
 
Respondents. 
______________________________ 
 
 
 
BRIEF IN OPPOSITION TO  
EMERGENCY APPLICATION FOR WRIT OF INJUNCTION 
 
 
______________________________ 
 
LETITIA JAMES  
 Attorney General 
 State of New York  
BARBARA D. UNDERWOOD* 
 Solicitor General 
STEVEN C. WU  
 Deputy Solicitor General 
MARK S. GRUBE 
DUSTIN J. BROCKNER 
  Assistant Solicitors General 
28 Liberty Street 
New York, New York 10005 
(212) 416-8016 
barbara.underwood@ag.ny.gov 
 
*Counsel of Record  
Dated: November 16, 2021 
 
 

 
i 
TABLE OF CONTENTS 
 
Page 
TABLE OF AUTHORITIES .......................................................................................... ii 
INTRODUCTION .......................................................................................................... 1 
STATEMENT ................................................................................................................. 3 
A. 
New York’s Long History of Vaccination Requirements ........................... 3 
B. 
The COVID-19 Pandemic and the Development of Safe Vaccines ........... 4 
C. 
New York’s Response to Transmission of the Delta Variant in the 
Healthcare Sector ....................................................................................... 6 
D. 
Procedural History ................................................................................... 15 
ARGUMENT ................................................................................................................ 19 
THE COURT SHOULD DENY PLAINTIFFS’ REQUEST FOR THE EXTRAORDINARY 
RELIEF OF AN INTERIM STAY .................................................................................... 19 
A. 
This Court Is Unlikely to Grant Certiorari. ............................................ 20 
B. 
Plaintiffs Have Not Shown an Indisputably Clear Right to Relief. ....... 21 
1. 
Plaintiffs are unlikely to succeed on their Free Exercise 
claim. ................................................................................................ 22 
2. 
Plaintiffs are unlikely to succeed on their Title VII 
preemption claim. ............................................................................ 29 
3. 
Plaintiffs’ objection to a nonparty state agency’s 
administration of unemployment benefits was never 
presented below, is unrelated to the emergency rule at issue 
here, and cannot support a stay of the rule. ................................... 37 
C. 
The Absence of Irreparable Injury and the Balance of the Equities 
Weigh Heavily Against an Injunction. .................................................... 39 
CONCLUSION ............................................................................................................. 42 
 

 
ii
TABLE OF AUTHORITIES 
 
Cases 
Page(s) 
Ansonia Bd. of Educ. v. Philbrook, 
479 U.S. 60 (1986) .................................................................................................. 31 
Bell v. Wolfish, 
441 U.S. 520 (1979) ................................................................................................ 28 
Blackhawk v. Pennsylvania, 
381 F.3d 202 (3d Cir. 2004) .................................................................................... 24 
California Fed. Sav. & Loan Ass’n v. Guerra, 
479 U.S. 272 (1987) .......................................................................................... 29, 35 
Chevron U.S.A. Inc. v. Echazabal, 
536 U.S. 73 (2002) .................................................................................................. 35 
Cosme v. Henderson, 
287 F.3d 152 (2d Cir. 2002) .................................................................................... 31 
Cutter v. Wilkinson, 
544 U.S. 709 (2005) .......................................................................................... 36, 38 
Dahl v. Board of Trs. of W. Mich. Univ., 
15 F.4th 728 (6th Cir. 2021) ................................................................................... 20 
Does v. Mills, 
16 F.4th 20 (1st Cir. 2021) .............................................................................. passim 
Does v. Mills, 
No. 21A90, 2021 WL 5027177 (U.S. Oct. 29, 2021) ..................................... 1, 20, 21 
Dr. T. v. Alexander-Scott, 
No. 21-cv-387, 2021 WL 4476784 (D.R.I. Sept. 30, 2021) ..................................... 27 
Draper v. United States Pipe & Foundry Co., 
527 F.2d 515 (6th Cir. 1975) ............................................................................ 33, 35 
Employment Div., Dep’t of Human Res. of Ore. v. Smith, 
494 U.S. 872 (1990) .......................................................................................... 22, 24 
F.F. v. State, 
194 A.D.3d 80, 88 (3d Dep’t 2021) ......................................................................... 27 

 
iii 
Cases 
Page(s) 
Fulton v. City of Philadelphia, 
141 S. Ct. 1868 (2021) ...................................................................................... 22, 24 
Gregory v. Ashcroft, 
501 U.S. 452 (1991) ................................................................................................ 29 
Hamilton v. City of New York, 
No. 18-cv-4657, 2021 WL 4439974 (E.D.N.Y. Sept. 28, 2021) .............................. 33 
Hillsborough Cnty., Fla. v. Automated Med. Lab’ys, Inc., 
471 U.S. 707 (1985) ................................................................................................ 36 
Hollingsworth v. Perry, 
558 U.S. 183 (2010) ................................................................................................ 20 
In re State, 
No. 21-873, 2021 WL 4785741 (Tex. Oct. 14, 2021) .............................................. 28 
Kalsi v. New York City Transit Auth., 
62 F. Supp. 2d 745 (E.D.N.Y. 1998) ....................................................................... 33 
Knight v. Connecticut Dep’t of Public Health, 
275 F.3d 156 (2d Cir. 2001) .................................................................................... 33 
Marshall v. United States, 
414 U.S. 417 (1974) ................................................................................................ 28 
New State Ice Co. v. Liebmann, 
285 U.S. 262 (1932) ................................................................................................ 28 
Nken v. Holder, 
556 U.S. 418 (2009) ................................................................................................ 21 
Respect Me. PAC v. McKee, 
562 U.S. 996 (2010) ................................................................................................ 19 
Roman Catholic Diocese of Brooklyn v. Cuomo, 
141 S. Ct. 63 (2020) ................................................................................................ 40 
Sampson v. Murray, 
415 U.S. 61 (1974) .................................................................................................. 40 
Sherbert v. Verner, 
374 U.S. 398 (1963) ................................................................................................ 24 

 
iv 
Cases 
Page(s) 
Sides v. NYS Div. of State Police, 
No. 03-cv-153, 2005 WL 1523557 (N.D.N.Y. 2005) ............................................... 33 
Trans World Airlines, Inc. v. Hardison, 
432 U.S. 63 (1977) ............................................................................................ 32, 33 
Trinity Lutheran Church of Columbia, Inc. v. Comer, 
137 S. Ct. 2012 (2017) ............................................................................................ 25 
We The Patriots USA, Inc. v. Hochul, 
No. 21-2179, 2021 WL 5121983 (2d Cir. Nov. 4, 2021) .................................. passim 
Winter v. Natural Res. Def. Council, Inc., 
555 U.S. 7 (2008) .................................................................................................... 40 
Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 
542 U.S. 1305 (2004) ........................................................................................ 19, 22 
Workman v. Mingo Cnty. Bd. of Educ., 
419 F. App’x 348 (4th Cir. 2011) ............................................................................ 27 
Laws 
Federal 
42 U.S.C. 
§ 2000e .................................................................................................................... 35 
§ 2000e-7 ................................................................................................................. 30 
§ 2000h-4 ................................................................................................................. 30 
State 
Cal. Health & Safety Code § 120325 et seq. ............................................................... 27 
Conn. Gen. Stat. Ann. § 10-204a ................................................................................. 27 
Me. Rev. Stat. Ann. tit. 20-A § 6355 ........................................................................... 27 
N.Y. Public Health Law 
§ 16 ............................................................................................................................ 7 
§ 201 .......................................................................................................................... 6 
N.Y. State Administrative Procedure Act § 202. .......................................................... 8 
W. Va. Code Ann. § 16-3-4 ........................................................................................... 27 

 
v 
Administrative Sources 
Page(s) 
10 N.Y.C.R.R. 
§ 2.59 ....................................................................................................................... 12 
§ 2.61 ................................................................................................................ passim 
§ 66-1.1 .................................................................................................................... 12 
§ 66-1.3 .................................................................................................................... 12 
§ 405.3 ....................................................................................................................... 3 
§ 405.3 ..................................................................................................................... 25 
§ 415.26 ..................................................................................................................... 4 
§ 751.6 ....................................................................................................................... 4 
§ 763.13 ..................................................................................................................... 4 
§ 766.11 ..................................................................................................................... 4 
§ 794.3 ....................................................................................................................... 4 
§ 1001.11 ................................................................................................................... 4 
Health and Immunization of Employees of Medical Facilities and Certified 
Home Health Agencies, 3 N.Y. Reg. 6 (Jan. 14, 1981) ............................................ 4 
Immunization of Health Care Workers, 13 N.Y. Reg. 16 (Dec. 24, 1991) ................... 4 
Prevention of COVID-19 Transmission by Covered Entities, 43 N.Y. Reg. 6 
(Sept. 15, 2021) ................................................................................................... 8, 12 
Medicare and Medicaid Programs – Omnibus COVID-19 Health Care Staff 
Vaccination, 86 Fed. Reg. 61,555 (Nov. 5, 2021) ............................................. 36, 37 
Miscellaneous Authorities 
American Med. Ass’n, Audiey Kao, MD, PhD, on Mandating Vaccines for 
Health Care Workers (July 20, 2021) ..................................................................... 11 
Carina Storrs, How Exactly Fetal Tissue Is Used for Medicine, CNN (Dec. 8, 
2017) .......................................................................................................................... 5 
Centers for Disease Control & Prevention, COVID Data Tracker: Cases & 
Deaths Among Healthcare Personnel ....................................................................... 4 
Centers for Disease Control & Prevention, COVID Data Tracker: Trends in 
Number of COVID-19 Cases and Deaths in the US Reported to CDC, by 
State/Territory ......................................................................................................... 4 
Centers for Disease Control & Prevention, Delta Variant: What We Know 
About the Science (Aug. 26, 2021) .......................................................................... 13 
 

 
vi 
Miscellaneous Authorities 
Page(s) 
Centers for Disease Control & Prevention, Interim Clinical Considerations for 
Use of COVID-19 Vaccines Currently Approved or Authorized in the 
United States (Nov. 5, 2021) .................................................................................... 9 
Centers for Disease Control & Prevention, Safety of COVID-19 Vaccines (Nov. 
1, 2021) .................................................................................................................... 10 
Centers for Disease Control & Prevention, Science Brief: COVID-19 Vaccines 
and Vaccination (Sept. 15, 2021) ........................................................................... 13 
Centers for Disease Control & Prevention, Vaccine Recommendations and 
Guidelines of the ACIP: Contraindications and Precautions (Aug. 5, 2021) .......... 9 
Chairmen of the Comm. on Doctrine and the Comm. on Pro-Life Activities, 
U.S. Conf. of Catholic Bishops Moral Considerations Regarding the New 
COVID-19 Vaccines (Dec. 11, 2020) ......................................................................... 6 
Devin Watkins, Pope Francis Urges People to Get Vaccinated Against Covid-19, 
Vatican News (Aug. 18, 2021) .................................................................................. 6 
Equal Employment Opportunity Comm’n, What You Should Know About 
COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws ........ 36, 37 
Heidi L. Moline et al., Effectiveness of COVID-19 Vaccines in Preventing 
Hospitalization Among Adults Aged ≥ 65 Years – COVID-NET, 13 States, 
February-April 2021, 70 Morbidity & Mortality Wkly. Rep. 1088 (2021) .............. 5 
Ivan Pereira, Few People Medically Exempt from Getting COVID-19 Vaccine: 
Experts, ABC News (Sept. 15, 2021) ...................................................................... 10 
James G. Hodge, Jr. & Lawrence O. Gostin, School Vaccination Requirements: 
Historical, Social, and Legal Perspectives, 90 Ky. L.J. 831 (2002) ......................... 3 
James T. Lee et al., Disparities in COVID-19 Vaccination Coverage Among 
Health Care Personnel Working in Long-Term Care Facilities, by Job 
Category, National Healthcare Safety Network – United States, March 
2021, 70 Morbidity & Mortality Wkly. Rep. 1036 (2021) ...................................... 13 
Jennifer Lubell, Why COVID-19 Vaccination Should Be Required for Health 
Professionals (Am. Med. Ass’n July 27, 2021) ....................................................... 11 
Kimberly G. Blumenthal et al., Acute Allergic Reactions to mRNA COVID-19 
Vaccines, 325 JAMA 1562 (2021) ........................................................................... 10 
 

 
vii 
Miscellaneous Authorities 
Page(s) 
Los Angeles Cnty. Dep’t of Pub. Health, COVID-19 Vaccine and Fetal Cell 
Lines (Apr. 20, 2021) ................................................................................................ 5 
N.Y. Dep’t of Health, Frequently Asked Questions (FAQs) Regarding the 
August 26, 2021 – Prevention of COVID-19 Transmission by Covered 
Entities Emergency Regulation .......................................................................... 9, 10 
N.Y. Dep’t of Labor, Unemployment Insurance: Top Frequently Asked Questions ..... 38 
Press Release, Food & Drug Admin., FDA Takes Additional Action in Fight 
Against COVID-19 by Issuing Emergency Use Authorization for Second 
COVID-19 Vaccine (Dec. 18, 2020) .......................................................................... 5 
Press Release, Food & Drug Admin., FDA Takes Key Action in Fight Against 
COVID-19 by Issuing Emergency Use Authorization for First COVID-19 
Vaccine (Dec. 11, 2020) ............................................................................................. 5 
Press Release, Food & Drug Admin., FDA Approves First COVID-19 Vaccine 
(Aug. 23, 2021) .......................................................................................................... 5 
Press Release, Food & Drug Admin., FDA Issues Emergency Use 
Authorization for Third COVID-19 Vaccine (Feb. 27, 2021) .................................. 5 
Press Release, ReliefWeb, World Religious Leaders Call for Massive Increases 
in Production of Covid Vaccines and End to Vaccine Nationalism (Apr. 27, 
2021) .......................................................................................................................... 6 
Special Meeting of the N.Y. Pub. Health & Health Plann_ing Council, Comm. 
on Codes, Reguls. & Legis. (Aug. 26, 2021) ..................................................... 12, 13 

INTRODUCTION 
The COVID-19 pandemic has imposed a deadly toll on New York. COVID-19’s 
impact has been particularly devastating in the healthcare sector, where already 
vulnerable patients and residents are at greater risk of severe harm from any 
infection, and where the spread of the virus among healthcare workers can lead to a 
vicious cycle of staff shortages and deterioration of patient care. Concerns about 
COVID-19 have also risen in recent months because of the alarming spread of the 
highly contagious SARS-CoV-2 Delta variant. 
In light of these concerns, the New York Department of Health (DOH) issued 
an emergency rule requiring COVID-19 vaccinations for certain healthcare workers: 
namely, any worker whose activities could potentially expose patients, residents, or 
other personnel to COVID-19 if he or she were infected. 10 N.Y.C.R.R. § 2.61. Like 
preexisting vaccination requirements for measles and rubella that have been in effect 
for decades, DOH’s emergency COVID-19 rule contains only a narrow medical exemp-
tion. Plaintiffs here sued to challenge the absence of a religious exemption on Free 
Exercise and Title VII preemption grounds. The district court granted a preliminary 
injunction, but the Second Circuit reversed. 
Plaintiffs now ask this Court for the extraordinary relief of a stay of DOH’s 
emergency rule. This Court should deny the application. Under comparable circum-
stances, this Court recently denied a request to enjoin a Maine regulation that also 
requires healthcare workers to receive a COVID-19 vaccination without providing a 
religious exemption. See Does v. Mills, No. 21A90, 2021 WL 5027177 (U.S. Oct. 29, 

 
2
2021). The court is also considering a similar emergency stay application in We The 
Patriots USA, Inc. v. Hochul, No. 21A125, which arises from the same Second Circuit 
proceeding as this case.  
For the reasons given in defendants’ opposition in We The Patriots, plaintiffs 
here fail to show an indisputably clear entitlement to relief on the merits of their Free 
Exercise claim. As the Second Circuit found, nothing in this record indicates any 
hostility to or singling out of religious beliefs that would render the emergency rule 
nonneutral. Nor does the availability of a medical exemption undercut the rule’s 
general applicability. The rule’s medical exemption is tightly constrained in both 
scope and duration (far more so than the medical exemption at issue in Mills), and it 
serves rather than undermines the rule’s objective of protecting the health of 
healthcare workers. For these reasons, the medical exemption is not comparable to 
the religious exemption that plaintiffs seek, and thus does not support any inference 
that otherwise similarly situated religious interests are being disfavored. See Br. in 
Opp. to Emergency Appl. for Writ of Inj., No. 21A125 (filed Nov. 10, 2021). 
Plaintiffs’ claim of Title VII preemption also fails to support their request for 
an emergency stay. As the Second Circuit correctly recognized, DOH’s emergency rule 
does not prohibit employers from providing a reasonable accommodation under Title 
VII. Plaintiffs’ arguments to the contrary assume that Title VII requires employers 
to offer plaintiffs their preferred accommodation—an outright exemption from 
vaccination. But well-settled case law makes clear that Title VII does not entitle 
employees to the accommodation that they prefer; nor does the statute compel 

 
3
employers to provide accommodations that would be unreasonable or impose an 
undue hardship, as an outright exemption would here. 
Finally, the extraordinary relief of an interim stay is not warranted because 
this Court is unlikely to grant certiorari. There is no circuit split over the constitu-
tionality of COVID-19 vaccination rules for healthcare workers. And the record here 
is sparse, especially when it comes to concrete evidence about the anonymous 
plaintiffs, their unidentified employers, and those employers’ actual implementation 
of DOH’s emergency rule. These factors make this case a poor vehicle for reviewing 
the issues that plaintiffs have raised.  
STATEMENT 
A. 
New York’s Long History of Vaccination Requirements 
New York has long been a national leader in mandating vaccinations to protect 
against the spread of communicable disease. The State required school-age children 
to be vaccinated against smallpox in the 1860s. See James G. Hodge, Jr. & Lawrence 
O. Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 
90 Ky. L.J. 831, 851 (2002). And New York has also regularly imposed vaccination 
requirements on healthcare workers. For example, DOH regulations require hospital 
employees who pose a risk of transmission to patients to be immunized against 
measles and rubella; like the emergency rule at issue here, this requirement does not 
contain a religious exemption. See 10 N.Y.C.R.R. § 405.3(b)(10)(i)-(iii). Similar rules 

 
4
apply to healthcare workers in long-term care facilities and other institutions.1 These 
regulations have been in place in similar form since 1980 for rubella and 1991 for 
measles.2 
B. 
The COVID-19 Pandemic and the Development of Safe Vaccines 
COVID-19 is a highly infectious and potentially deadly respiratory illness that 
spreads easily from person to person. In the United States alone, COVID-19 has 
infected more than 45 million people and claimed more than 750,000 lives,3 including 
almost 725,000 infections and over 2,400 deaths among healthcare workers,4 who 
have been disproportionately harmed by the disease.  
In light of the harms caused by the COVID-19 pandemic, the U.S. Food and 
Drug Administration (FDA) issued emergency use authorizations for the Pfizer-
BioNTech, Moderna, and Janssen COVID-19 vaccines, and the FDA granted full 
 
1 See 10 N.Y.C.R.R. §§ 415.26(c)(1)(v)(a)(2)-(4) (nursing home personnel), 
751.6(d)(1)-(3) (employees of diagnostic and treatment centers), 763.13(c)(1)-(3) 
(personnel of home health agencies, long term home health care programs, and AIDS 
home care programs), 766.11(d)(1)-(3) (personnel of licensed home care services 
agencies), 794.3(d)(1)-(3) (hospice personnel), 1001.11(q)(1)-(3) (assisted living resi-
dences personnel). 
2 See Health and Immunization of Employees of Medical Facilities and Certified 
Home Health Agencies, 3 N.Y. Reg. 6, 6 (Jan. 14, 1981) (rubella); Immunization of 
Health Care Workers, 13 N.Y. Reg. 16, 16 (Dec. 24, 1991) (measles). 
3 Centers for Disease Control & Prevention, COVID Data Tracker: Trends in 
Number of COVID-19 Cases and Deaths in the US Reported to CDC, by State/ 
Territory. All websites last visited November 16, 2021. 
4 Centers for Disease Control & Prevention, COVID Data Tracker: Cases & 
Deaths Among Healthcare Personnel. 

 
5
regulatory approval for the Pfizer vaccine on August 23, 2021.5 Studies show that the 
vaccines are both safe and highly effective, particularly for preventing hospitaliza-
tions in vulnerable populations. For example, among adults 65 to 74 years old, one 
recent study showed the vaccines’ efficacy for preventing hospitalizations ranged 
from 84% to 96%, and concluded that increasing vaccination coverage is “critical to 
reducing the risk for COVID-19–related hospitalization, particularly in older adults.”6 
The COVID-19 vaccines do not contain aborted fetal cells. HEK-293 cells—
which are currently grown in a laboratory and are thousands of generations removed 
from cells collected from a fetus in 1973—were used in testing during the research 
and development phase of the Pfizer and Moderna vaccines.7 But the use of fetal cell 
lines for testing is common, including for the rubella vaccination, which New York’s 
healthcare workers are already required to take.8 A diverse range of religious leaders 
has strongly encouraged adherents to receive a COVID-19 vaccination. For example, 
 
5 Press Release, Food & Drug Admin., FDA Takes Key Action in Fight Against 
COVID-19 by Issuing Emergency Use Authorization for First COVID-19 Vaccine (Dec. 
11, 2020); Press Release, Food & Drug Admin., FDA Takes Additional Action in Fight 
Against COVID-19 by Issuing Emergency Use Authorization for Second COVID-19 
Vaccine (Dec. 18, 2020); Press Release, Food & Drug Admin., FDA Issues Emergency 
Use Authorization for Third COVID-19 Vaccine (Feb. 27, 2021); Press Release, Food 
& Drug Admin., FDA Approves First COVID-19 Vaccine (Aug. 23, 2021). 
6 See, e.g., Heidi L. Moline et al., Effectiveness of COVID-19 Vaccines in 
Preventing Hospitalization Among Adults Aged ≥ 65 Years – COVID-NET, 13 States, 
February-April 2021, 70 Morbidity & Mortality Wkly. Rep. 1088, 1092 (2021). 
7 Los Angeles Cnty. Dep’t of Pub. Health, COVID-19 Vaccine and Fetal Cell 
Lines 1-2 (Apr. 20, 2021). 
8 Carina Storrs, How Exactly Fetal Tissue Is Used for Medicine, CNN (Dec. 8, 
2017). 

 
6
Pope Francis, the leader of the Roman Catholic Church (with which all but one of the 
plaintiffs are affiliated), has recognized that taking an approved COVID-19 vaccine 
is “an act of love” and “a simple yet profound way to care for one another, especially 
the most vulnerable.”9 The U.S. Conference of Catholic Bishops has explained that 
receiving the Pfizer and Moderna vaccines is consistent with the Catholic faith 
because those vaccines did not use fetal cell lines for their “design, development, or 
production,” and the connection between those vaccines and abortion “is very 
remote.”10 More broadly, a coalition of 145 global faith leaders, representing a variety 
of faiths, issued a statement that the “only way to end the pandemic” is to ensure that 
COVID-19 vaccines “are made available to all people as a global common good.”11  
C. 
New York’s Response to Transmission of the Delta Variant 
in the Healthcare Sector 
DOH is charged with protecting the public health and supervising and 
regulating “the sanitary aspects of . . . businesses and activities affecting public 
health.” N.Y. Public Health Law § 201(1)(m). Pursuant to this broad mandate, DOH 
 
9 Devin Watkins, Pope Francis Urges People to Get Vaccinated Against Covid-
19, Vatican News (Aug. 18, 2021) (quotation marks omitted). 
10 Chairmen of the Comm. on Doctrine and the Comm. on Pro-Life Activities, 
U.S. Conf. of Catholic Bishops, Moral Considerations Regarding the New COVID-19 
Vaccines 4-5 (Dec. 11, 2020). 
11 Press Release, ReliefWeb, World Religious Leaders Call for Massive 
Increases in Production of Covid Vaccines and End to Vaccine Nationalism (Apr. 27, 
2021) (quotation marks omitted). 

 
7
has acted swiftly to respond to the risks posed by the Delta variant in New York’s 
healthcare sector.  
On August 18, 2021—prior to full FDA approval of the Pfizer vaccine—the 
DOH Commissioner issued an Order for Summary Action under Public Health Law 
§ 16, which allows him to “take certain action immediately” to remedy “a condition or 
activity which in his opinion constitutes danger to the health of the people,” for a 
period not to exceed fifteen days. Public Health Law § 16. The Order required limited 
categories of healthcare entities—hospitals and nursing homes—to ensure that 
covered personnel were fully vaccinated against COVID-19. (App. 99-105.) The Order 
also included both a medical exemption and an exemption for individuals who hold a 
“religious belief contrary to the practice of immunization, subject to a reasonable 
accommodation by the employer.” (App. 103-104.) The Order was not intended to be 
a permanent solution, but rather served as an immediate “stop-gap measure pending 
action by the Public Health and Health Planning Council,” a council within DOH that 
consists of the Commissioner and 24 other members drawn from the public health 
system, healthcare providers, and elsewhere.12  
As a result, the Order was superseded when, eight days later on August 26, 
2021—three days after the FDA gave full approval to the Pfizer vaccine—the Council 
approved the emergency rule that is at issue in this proceeding with the benefit of 
fuller consideration and input by its members. Under New York law, an emergency 
 
12 Decl. of Vanessa Murphy, J.D., M.P.H. (“Murphy Decl.”) ¶ 6, Does v. Hochul, 
No. 21-cv-5067 (E.D.N.Y. Oct. 5, 2021), ECF No. 48. 

 
8
rule may go into effect immediately and remain in effect for up to ninety days. N.Y. 
State Administrative Procedure Act § 202(6)(b). The emergency rule requires covered 
healthcare entities to “continuously require” employees to be fully vaccinated against 
COVID-19 if 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(a)(2), (c). In contrast to the Commissioner’s Order, the 
emergency rule covers a broader range of healthcare entities—specifically, extending 
to certified home health agencies, long term home health care programs, hospices, 
and adult care facilities, among others. § 2.61(a)(1)(ii)-(iv). Also, unlike the Order, the 
emergency rule was formally published in the New York Register and was 
accompanied by a full set of required documentation, including a Regulatory Impact 
Statement and findings to support the need for emergency action. See Prevention of 
COVID-19 Transmission by Covered Entities, 43 N.Y. Reg. 6, 6-9 (Sept. 15, 2021). 
The rule contains only a single exception to its requirements: a narrow medical 
exemption that is strictly limited in duration and scope. The rule exempts employees 
for whom a “COVID-19 vaccine [would be] detrimental to [their] health . . . based 
upon a pre-existing health condition.” § 2.61(d)(1). As to duration, the exemption 
applies “only until such immunization is found no longer to be detrimental to such 
personnel member’s health,” and that duration “must be stated in the personnel 
employment medical record.” Id. As to scope, the exemption must be “in accordance 
with generally accepted medical standards,” such as the “recommendations of the 

 
9
Advisory Committee on Immunization Practices” (ACIP), a committee that operates 
under the auspices of the CDC. Id. 
DOH guidance on the emergency rule makes clear that the available grounds 
for a medical exemption are narrow and largely temporary. As explained by DOH’s 
Frequently Asked Questions document regarding the emergency rule,13 the only 
“contraindications” recognized by the CDC as a ground for a medical exemption from 
COVID-19 vaccination are severe or immediate allergic reactions “after a previous 
dose” of the vaccine or “to a component of the COVID-19 vaccine.”14 Even then, the 
CDC advises that “the majority of contraindications are temporary,” such that 
“vaccinations often can be administered later when the condition leading to a 
contraindication no longer exists.”15 The CDC also recognizes certain “precautions”—
i.e., conditions that increase the risk of a serious reaction or that interfere with the 
effectiveness of a vaccine—that could warrant deferring administration of the 
COVID-19 vaccine (such as a recent acute illness), or administering a different version 
of the vaccine (such as a reaction to one of the three available vaccines).16 By contrast, 
 
13 N.Y. Dep’t of Health, Frequently Asked Questions (FAQs) Regarding the 
August 26, 2021 – Prevention of COVID-19 Transmission by Covered Entities 
Emergency Regulation 4 (“Dep’t of Health, FAQs”).  
14 Centers for Disease Control & Prevention, Interim Clinical Considerations 
for Use of COVID-19 Vaccines Currently Approved or Authorized in the United States 
(Nov. 5, 2021). 
15 Centers for Disease Control & Prevention, Vaccine Recommendations and 
Guidelines of the ACIP: Contraindications and Precautions (Aug. 5, 2021). 
16 Id. For example, the CDC notes that a small fraction—about seven per 
million—of women between eighteen and forty-nine years old experience thrombosis 
(continued on the next page) 

 
10 
less serious conditions are not a basis for a medical exemption, including common 
side effects to the COVID-19 vaccine like fever, headache, or fatigue; allergic reactions 
to other substances; or immunosuppression due to a health condition or use of another 
medication. Dep’t of Health, FAQs, supra, at 4-5.  
Public health experts have uniformly concurred that the number of individuals 
who are medically ineligible to receive a COVID-19 vaccine is very small. Data show 
that the vaccines do not present “immediate health issues or side effects for most 
people with pre-existing medication conditions,” and, apart from age, “there are no 
major exemptions that cover large groups of people.”17 The vaccines are safe for 
immunocompromised people, pregnant women, and people with underlying condi-
tions. The primary group of people who face serious medical risk from a COVID-19 
vaccine are people who experience anaphylactic shock, but that “severe allergy is 
rare, and less than one in 1 million people experience it.”18  
 
with thrombocytopenia syndrome after receiving the Janssen vaccine. Centers for 
Disease Control & Prevention, Safety of COVID-19 Vaccines (Nov. 1, 2021). Any 
concerns about this unlikely risk, however, can be assuaged by receiving the Pfizer 
or Moderna vaccine. 
17 Decl. of Elizabeth Rausch-Phung, M.D., M.P.H. (Rausch-Phung Decl.) ¶ 66, 
Dr. A. v. Hochul, No. 21-cv-1009 (N.D.N.Y. Sept. 22, 2021), ECF No. 16; Ivan Pereira, 
Few People Medically Exempt from Getting COVID-19 Vaccine: Experts, ABC News 
(Sept. 15, 2021) (quotation marks omitted). 
18 Rausch-Phung Decl. ¶ 66; Pereira, Few People Medically Exempt, supra; see 
also Kimberly G. Blumenthal et al., Acute Allergic Reactions to mRNA COVID-19 
Vaccines, 325 JAMA 1562, 1562 (2021) (rate of anaphylaxis to Pfizer and Moderna 
vaccinations is 2.5 to 11.1 per 1 million doses). 

 
11 
The emergency rule does not contain an exemption for those who oppose 
vaccination on religious or any other grounds. The availability of a medical but not 
religious exemption is also a feature of the requirement that healthcare workers be 
vaccinated against measles and rubella. DOH has explained that the emergency rule 
is consistent with these preexisting obligations and that allowing a religious 
exemption for the COVID-19 vaccine, but not for measles and rubella, would 
undermine a consistent approach to preventing the transmission of these particularly 
infectious and harmful diseases in the healthcare sector.19 The decision to omit a 
religious exemption is consistent with statements by the American Medical 
Association that nonmedical exemptions “endanger the health of the unvaccinated 
individual and those whom the individual comes in contact with,” and that healthcare 
workers in particular “have a fundamental obligation to patients [to get] vaccinated 
for preventable diseases.”20 
In accompanying administrative materials, DOH further explained the basis 
for the emergency rule. It noted that the rule responded to the increasing circulation 
of the Delta variant, which had led to a tenfold increase in COVID-19 infections since 
early July 2021. DOH found that COVID-19 vaccines are safe and effective, and that 
the presence of unvaccinated personnel in healthcare settings poses “an unacceptably 
 
19 See Rausch-Phung Decl. ¶¶ 46-52. 
20 American Med. Ass’n, Audiey Kao, MD, PhD, on Mandating Vaccines for 
Health Care Workers (July 20, 2021) (quotation marks omitted); see Jennifer Lubell, 
Why COVID-19 Vaccination Should Be Required for Health Professionals (Am. Med. 
Ass’n July 27, 2021). 

 
12 
high risk” that employees may acquire COVID-19 and transmit it both (a) to 
colleagues, thereby “exacerbating staffing shortages”; and (b) to “vulnerable patients 
or residents,” thereby “causing [an] unacceptably high risk of complications.” 43 N.Y. 
Reg. at 8. DOH emphasized that unvaccinated individuals have eleven times the risk 
as vaccinated individuals of being hospitalized with COVID-19. 
The Council also conducted a meeting on August 26, 2021, at which it 
considered further information concerning the need for the emergency rule and the 
scope of the obligations it imposed. DOH’s Commissioner explained that the 
emergency rule was necessary because the State was at a crucial inflection point with 
the increasing prevalence of the Delta variant and the heightened risk for the spread 
of other respiratory viruses (such as the flu) in the fall season.21 DOH counsel further 
explained that the scope of the emergency rule largely tracked preexisting vaccine 
requirements, including those for measles and rubella, in order to facilitate the rule’s 
implementation and enforcement. For example, the definition of “covered personnel” 
aligns with the scope of DOH’s regulation requiring seasonal influenza vaccination 
or masking for certain healthcare workers. Comm. Meeting at 10:40-11:12; see 10 
N.Y.C.R.R. § 2.59(a)(1). Counsel similarly noted that the medical exemption is consis-
tent with the existing standards governing immunizations for students. Comm. 
Meeting at 30:42-31:00; see 10 N.Y.C.R.R. §§ 66-1.1(l), 66-1.3(c). DOH’s Director of 
Epidemiology confirmed that the medical exemption in the emergency rule is 
 
21 Video, Special Meeting of the N.Y. Pub. Health & Health Planning Council, 
Comm. on Codes, Reguls. & Legis., at 2:48-4:06 (Aug. 26, 2021) (“Comm. Meeting”). 

 
13 
consistent with medical exemptions in other regulations and is based on generally 
accepted medical standards such as the recommendations of CDC’s ACIP. Comm. 
Meeting at 14:33-15:03. And DOH counsel also explained that the lack of a religious 
exemption is consistent with a variety of regulatory provisions requiring measles and 
rubella vaccinations for certain healthcare workers. Id. at 37:20-37:38.  
DOH’s findings about the immediate necessity for the emergency rule are 
supported by the CDC’s conclusions that the Delta variant is more than twice as 
contagious as prior variants and may cause more severe illness in unvaccinated 
people. Although vaccinated people may transmit the Delta variant to others, they do 
so at much lower rates than unvaccinated people.22 The CDC has also recognized the 
importance of achieving high vaccination rates in settings where residents are at high 
risk of COVID-19-associated mortality, including long-term care facilities. Deaths at 
such facilities account for almost one third of COVID-19 related deaths in the United 
States, and the CDC has observed outbreaks that occurred in facilities where the 
“residents were highly vaccinated, but transmission occurred through unvaccinated 
staff members.”23 
 
22 See Rausch-Phung Decl. ¶¶ 8-12; Centers for Disease Control & Prevention, 
Delta Variant: What We Know About the Science (Aug. 26, 2021); Centers for Disease 
Control & Prevention, Science Brief: COVID-19 Vaccines and Vaccination (Sept. 15, 
2021). 
23 See Rausch-Phung Decl. ¶ 62; James T. Lee et al., Disparities in COVID-19 
Vaccination Coverage Among Health Care Personnel Working in Long-Term Care 
Facilities, by Job Category, National Healthcare Safety Network – United States, 
March 2021, 70 Morbidity & Mortality Wkly. Rep. 1036, 1036-37 (2021). 

 
14 
Since the emergency rule went into effect on September 27, 2021, DOH has 
collected preliminary data concerning the rate of vaccinations and exemptions among 
New York’s healthcare workforce as of October 19, 2021. Because the rule has been 
subject to limited temporary restraining orders (TROs) preventing DOH from 
interfering with employers’ grants of religious exemptions, this data includes some 
information about religious exemptions. 
In the nursing home sector, 127,822 of 144,183 workers were fully vaccinated 
(88.7%), 12,569 had received one dose of a two-dose vaccine (8.7%), 538 were reported 
as currently medically ineligible for a COVID-19 vaccine (0.4%), and 2,680 were 
reported as “other” exemptions (1.9%), which DOH understands to refer to the 
religious exemption preserved by the various TROs (since no other nonmedical 
exemptions are permitted).24 In the adult care facility sector, 26,449 of 29,583 
workers were fully vaccinated (89.4%), 2,166 had received one dose of a two-dose 
vaccine (7.3%), 155 were reported as currently medically ineligible for a COVID-19 
vaccine (0.5%), and 567 were reported as “other” (religious) exemptions (1.9%).25 In 
the hospital sector, 91.4% of workers were fully vaccinated, 4.8% had received one 
dose of a two-dose vaccine, 0.5% were medically ineligible for a COVID-19 vaccine, 
and 1.3% were reported as “other” (religious) exemptions.26  
 
24 See Decl. of Valerie A. Deetz ¶ 3, Serafin v. New York State Dep’t of Health, 
Index No. 908296-21 (Sup. Ct. Albany County Oct. 20, 2021), NYSCEF Doc. No. 56. 
25 See id. ¶ 4. 
26 See Decl. of Dorothy Persico ¶ 3, Serafin, Index No. 908296-21 (Sup. Ct. 
Albany County Oct. 21, 2021), NYSCEF Doc. No. 57. 

 
15 
The disparity between medical and religious exemptions is not uniform across 
the State. Cf. Does v. Mills, 16 F.4th 20, 26 (1st Cir. 2021) (noting disparities in 
“geographic distribution of vaccination” within Maine). In Erie County, only 41 
hospital workers (0.2%) were currently medically ineligible, while 740 (4%) reported 
“other” (religious) exemptions. And in Monroe County, only 42 (0.1%) hospital 
workers were currently medically ineligible, while 977 (3.2%) reported “other” 
(religious) exemptions.27  
D. 
Procedural History 
On September 13, 2021, plaintiffs filed this lawsuit, challenging the omission 
of a religious exemption from DOH’s emergency rule. The plaintiffs are seventeen 
anonymous healthcare workers allegedly subject to the emergency rule. (App. 135, 
146-172.)  
Plaintiffs, all but one of whom identify as Catholics,28 allege that they have 
religious objections to receiving vaccines that use “aborted fetus cell lines in their 
testing, development, or production” (App. 135; see App. 143-146). Plaintiffs allege 
that if they do not take the COVID-19 vaccine they will face various employment 
consequences, risk disciplinary charges, or lose their licenses.29 (See, e.g., App. 138-
 
27 See Persico Decl. ¶¶ 4-5. 
28 One plaintiff identifies as a Baptist. (App. 158.) 
29 Plaintiffs allege a diverse range of potential employment consequences. 
Some allege direct loss of employment. Others allege that they will be unable to 
continue their practices if their “hospital privileges [are] suspended.” (See App. 152-
(continued on the next page) 

 
16 
143, 155, 159, 163, 168, 171-172.) Plaintiffs do not identify themselves or their 
employers. They claim that the DOH emergency rule violates their right to free 
exercise of religion and is preempted by Title VII. (See App. 172-180.) They seek 
declaratory and injunctive relief. (See App. 180.) 
Plaintiffs moved for a temporary restraining order (TRO) and a preliminary 
injunction that same day. Plaintiffs did not submit any evidence with that motion. The 
district court granted a TRO without hearing from defendants. (App. 56-60.) On 
October 12, 2021, the district court granted plaintiffs’ motion for a preliminary 
injunction. (See App. 62-88)  
On October 29, 2021, the Second Circuit issued an order that vacated the 
preliminary injunction and reversed the trial court’s order granting a preliminary 
injunction, with an opinion to follow. (App. 2-3.) On November 4, 2021, the Second 
Circuit issued its written decision. (See App. 4-54; We The Patriots USA, Inc. v. 
Hochul, No. 21-2179, 2021 WL 5121983 (2d Cir. Nov. 4, 2021) (“WTP, at *__”).)30  
On plaintiffs’ Free Exercise claim, the court held that plaintiffs had failed to 
show that DOH’s emergency rule was “likely not neutral or generally applicable.” 
(App. 24; WTP, at *8.) The court explained that the rule “is facially neutral because 
it does not single out employees who decline vaccination on religious grounds.” (Id.) 
And the court rejected plaintiffs’ contention that the rule should be deemed 
 
154, 157, 164, 169.) Others allege that they were told that their employment would 
be at risk if they do not receive a COVID-19 vaccination. (See App. 160, 166.) 
30 The order and written decision also resolved the companion We The Patriots 
appeal.   

 
17 
nonneutral because it “eliminated” a religious exemption contained in the 
Commissioner’s separate August 18 Order issued just eight days earlier, explaining 
that the rule was issued by different decision-makers, following a distinct procedure 
that “provided more process, public input, and support for a measure that would be 
effective” for a different duration. (App. 26; WTP, at *9.) As for public statements made 
by Governor Hochul that plaintiffs assert reflected animus, the court noted that many 
of those comments “did not relate to Section 2.61 or workplace vaccine requirements 
at all,” and that the Governor’s “expression of her own religious belief as a moral 
imperative to become vaccinated cannot reasonably be understood to imply an intent 
on the part of the State to target those with religious beliefs contrary to hers.” (App. 
27-28; WTP, at *10.) Otherwise, “politicians’ frequent use of religious rhetoric to 
support their positions” would trigger heightened scrutiny for many government 
actions. (App. 27-28; WTP, at *10.)  
The Second Circuit also concluded that the rule is likely generally applicable. 
The medical exemption did not render the rule underinclusive because “applying the 
vaccination requirement to individuals with medical contraindications and precau-
tions would not effectively advance” the State’s interest in promoting the health of 
healthcare workers to reduce the risk of staffing shortages. (App. 31; WTP, at *12.) 
The court also held that the evidence before it showed that the risks of a medical 
exemption and a religious exemption are not comparable. The “medical exemption is 
defined to be limited in duration,” and “[t]he statistics provided by the State further 
indicate that medical exemptions are likely to be more limited in number than 

 
18 
religious exemptions, and that high numbers of religious exemptions appear to be 
clustered in particular geographic areas.” (App. 31-32; WTP, at *12.) The court also 
concluded that the medical exemption does not create a mechanism for individualized 
exemptions because it applies to “an objectively defined category of people” and 
“affords no meaningful discretion to the State or employers.” (App. 37-38; WTP, at 
*14.)  
As a neutral law of general applicability, the Second Circuit assessed the rule 
under rational-basis review, and it concluded that the rule was a rational response to 
the spread of “an especially contagious variant of the virus in the midst of a pandemic 
that has now claimed the lives of over 750,000 in the United States and some 55,000 
in New York.” (App. 39; WTP, at *15.) 
The Second Circuit also rejected plaintiffs’ claim based on Title VII 
preemption. The court explained that “Section 2.61 does not require employers to 
violate Title VII because, although it bars an employer from granting a religious 
exemption from the vaccination requirement, it does not prevent employees from 
seeking a religious accommodation allowing them to continue working consistent 
with the Rule, while avoiding the vaccination requirement.” (App. 42; WTP, at *17.) 
The court also recognized that “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.” (Id.) And 
the court further held that the sparse record precluded any inference that the 
anonymous plaintiffs’ unidentified employers would be unable to provide any 

 
19 
reasonable accommodation consistent with the emergency rule.31 (App. 43; WTP, at 
*17.) 
Finally, the Second Circuit concluded that plaintiffs had also failed to show 
irreparable injury or a balance of the equities supporting a preliminary injunction, 
but noted that factual developments on remand might affect both of these factors. 
(App. 45-50; WTP, at *19-21.) 
ARGUMENT 
THE COURT SHOULD DENY PLAINTIFFS’ REQUEST FOR 
THE EXTRAORDINARY RELIEF OF AN INTERIM STAY  
Plaintiffs ask this Court to enjoin the enforcement of a duly issued emergency 
state health regulation—“extraordinary relief” that “‘does not simply suspend judicial 
alteration of the status quo but grants judicial intervention that has been withheld 
by lower courts.’” Respect Me. PAC v. McKee, 562 U.S. 996, 996 (2010) (quoting Ohio 
Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J., 
in chambers)). Such drastic relief is issued “sparingly and only in the most critical 
and exigent circumstances,” such as when “the legal rights at issue are indisputably 
clear.” Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 542 U.S. 1305, 1306 
(2004) (Rehnquist, C.J., in chambers) (quotation marks omitted). Plaintiffs do not 
come close to satisfying this stringent standard here. 
 
31 The Second Circuit also rejected a substantive due process claim brought by 
plaintiffs in the We The Patriots action. (See App. 44-45; WTP, at *18.) Plaintiffs here 
did not bring such a claim.  

 
20 
A. 
This Court Is Unlikely to Grant Certiorari. 
This Court’s assessment of plaintiffs’ likelihood of success on the merits 
encompasses “a discretionary judgment about whether the Court should grant review 
in this case.” Does v. Mills, No. 21A90, 2021 WL 5027177, at *1 (U.S. Oct. 29, 2021) 
(Barrett, J., concurring); see Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). 
Plaintiffs have failed to establish that this lawsuit is an appropriate vehicle to resolve 
the issues for which they seek review.  
For one thing, there is no circuit split over the constitutionality of COVID-19 
vaccination requirements for healthcare workers. The only other court of appeals to 
have addressed such a rule upheld it on grounds similar to those given by the Second 
Circuit below. See Mills, 16 F.4th 20. And plaintiffs are wrong to identify a conflict 
(see Emergency Appl. for Writ of Inj. at 37 (“Br. at”)) with the Sixth Circuit’s decision 
upholding a preliminary injunction against a university’s COVID-19 vaccination 
requirement for student-athletes. See Dahl v. Board of Trs. of W. Mich. Univ., 15 
F.4th 728 (6th Cir. 2021) (per curiam). That case involved “a factual setting signifi-
cantly different from that presented here”: namely, a scheme under which the 
university’s grant of exemptions was subject to no meaningful standards. (App. 38-
39, WTP, at *15 n.29.) No similar discretionary exemption scheme is at issue here. 
See infra at 24.  
This case also provides a poor vehicle because, as the Second Circuit repeatedly 
noted, the “record before the district court[] was sparse.” (App. 35; WTP, at *14.) In 
particular, for purposes of plaintiffs’ Title VII preemption claim, there was little to no 

 
21 
concrete evidence “in support of their broad allegations about the effect of Section 
2.61” on their employment. (App. 43; WTP, at *17.) For example, plaintiffs provided 
no documentation below about whether they have sought or been offered accommo-
dations that would be consistent with the emergency rule—facts that would be 
especially important for evaluating their claim that the emergency rule wholly 
prohibits accommodations required by Title VII. Plaintiffs object that their factual 
allegations “must be accepted as true.” (Br. at 32 n.32 (quotation marks omitted).) 
But the problem here is not that plaintiffs’ factual claims are disputed—it is that they 
are incomplete. There are thus important factual questions material to plaintiffs’ 
Title VII claim that are addressed neither by plaintiffs’ allegations nor by the record 
below, such as “the substance of Plaintiffs’ interactions with their employers,” “the 
opportunities for a reasonable accommodation under Title VII for religious objectors,” 
and the availability of “accommodations for the medically ineligible.” (App. 43; WTP, 
at *17.)  
For these reasons, this Court should reject plaintiffs’ invitation to “use the 
emergency docket to force the Court to give a merits preview in cases that it would 
be unlikely to take—and to do so on a short fuse without benefit of full briefing and 
oral argument.” Mills, 2021 WL 5027177, at *1 (Barrett, J., concurring). 
B. 
Plaintiffs Have Not Shown an Indisputably Clear Right to Relief. 
Plaintiffs’ request for relief should also be denied because they have failed to 
make a “strong showing” of likely success on the merits of their appeal, see Nken v. 
Holder, 556 U.S. 418, 426 (2009) (quotation marks omitted), let alone an “indisputably 

 
22 
clear” constitutional violation, Wisconsin Right to Life, 542 U.S. at 1306 (Rehnquist, 
C.J., in chambers) (quotation marks omitted).  
1. 
Plaintiffs are unlikely to succeed on their 
Free Exercise claim. 
Under this Court’s precedents, “laws incidentally burdening religion are 
ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as 
they are neutral and generally applicable.” Fulton v. City of Philadelphia, 141 S. Ct. 
1868, 1876 (2021). This Court has specifically identified “compulsory vaccination laws” 
as among the neutral, generally applicable laws that do not require religious exemp-
tions under the First Amendment. Employment Div., Dep’t of Human Res. of Ore. v. 
Smith, 494 U.S. 872, 889 (1990). Here, as the Second Circuit correctly held, plaintiffs’ 
Free Exercise claim fails because DOH’s emergency rule is a neutral law of general 
applicability that is subject to rational-basis review—a bar that it readily clears.  
Plaintiffs’ arguments to the contrary here largely parallel those made by the 
plaintiffs in We The Patriots and should be rejected for the reasons already given by 
defendants in their opposition to the We The Patriots stay application. See Br. in Opp. 
to Emergency Appl. for Writ of Inj. 21-34, No. 21A125 (“WTP Opp.”). Rather than 
rehash those arguments, defendants here respond to certain specific points raised by 
plaintiffs.  
First, plaintiffs assert that DOH’s emergency rule is not generally applicable 
because its “medical exemption treats comparable secular conduct better than 
religious conduct.” (Br. at 16.) As defendants have previously explained, however, the 

 
23 
medical exemption is not comparable to the religious exemption requested by 
plaintiffs. The medical exemption advances rather than undermines one of the core 
purposes of the emergency rule (to protect healthcare workers themselves); it is 
extremely limited in both scope and duration (and narrower than the medical 
exemption in the Maine regulation considered in Mills); and preliminary data shows 
that it allows significantly fewer unvaccinated individuals than a religious exemption 
would, thus limiting the medical exemption’s impact. See WTP Opp. at 28-31. 
Plaintiffs counter that “an unvaccinated employee carries the same risk of 
COVID spread regardless of their reasons for remaining unvaccinated” (Br. at 17), 
but they are incorrect. As defendants have explained (WTP Opp. at 29-30), because 
the most significant contraindication that would warrant a medical exemption is an 
adverse reaction to a prior dose of the COVID-19 vaccine, many of the workers who 
receive medical exemptions will already have received at least partial protection from 
that first vaccine dose. Moreover, because medical exemptions are predominantly 
temporary (WTP Opp. at 30-31), the amount of time that a medically ineligible 
individual poses a risk of spreading COVID-19 is also correspondingly limited. And 
finally, plaintiffs are wrong to dismiss the relevance (Br. at 17-18) of the significantly 
higher numbers of exemptions that will be offered on religious rather than medical 
grounds—three to four times more statewide (WTP Opp. at 13-14), and up to twenty-
three times more in certain jurisdictions (see App. 32; WTP, at *12). There is thus no 
basis to find that the tightly constrained medical exemption “undermines the 
purposes of the [emergency rule] to at least the same degree as the covered conduct 

 
24 
that is religiously motivated.” Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 
2004). 
Second, plaintiffs contend that the medical exemption renders the emergency 
rule the type of discretionary exemption scheme that this Court has found not to be 
generally applicable. (Br. at 18-19.) But as defendants previously explained (WTP 
Opp. at 25-26), and the Second Circuit correctly concluded, the “medical exemption 
here does not ‘invite the government to decide which reasons for not complying with 
the policy are worthy of solicitude.’” (App. 37; WTP, at *14 (quoting Fulton, 141 S. Ct. 
at 1879).) “Instead, the Rule provides for an objectively defined category of people to 
whom the vaccine requirement does not apply.” (Id.) Thus, “[o]n its face, the Rule 
affords no meaningful discretion to the State or employers, and Plaintiffs have not 
put forth any evidence suggesting otherwise.” (App. 38; WTP, at *14.) In sharp 
contrast, the scheme at issue in Fulton authorized a state official to issue exemptions 
at his or her “sole discretion.” 141 S. Ct. at 1878. And, as Smith explained, the 
program at issue in Sherbert v. Verner, 374 U.S. 398 (1963), allowed exceptions for 
“good cause,” which was an undefined standard under that scheme. 494 U.S. at 884. 
Third, plaintiffs contend that DOH’s emergency rule “targeted religion”—and 
thus was not neutral—because it “removed an existing religious exemption while 
broadening the medical exemption.” (Br. at 19.) But both aspects of plaintiffs’ 
characterization of the rule are wrong. The emergency rule did not “remove[] an 
existing religious exemption,” an apparent reference to the religious exemption 
contained in the Commissioner’s earlier August 18 Order for Summary Action. (App. 

 
25 
99-105.) As defendants have explained (WTP Opp. at 22-23), the emergency rule was 
not an amendment to the Commissioner’s Order at all, but rather the product of an 
independent rulemaking process. It is also simply not true that the emergency rule 
“broaden[ed] the medical exemption.” To support this characterization, plaintiffs 
point (Br. at 7) to immaterial wording changes between the Commissioner’s August 
18 Order and the emergency rule.32 But those changes did not (and were not intended 
to) alter the scope of the medical exemption, whose operative language parallels that 
in the similar exemption for the longstanding measles/rubella vaccination 
requirements. See 10 N.Y.C.R.R. § 405.3(b)(10)(iii). 
Plaintiffs further argue that the emergency rule is nonneutral because, after 
the Second Circuit’s decision below, some of their employers revoked religious 
exemptions that they had previously granted. (Br. at 20.) As an initial matter, 
plaintiffs’ assertion that their employers targeted religion in making employee-
specific decisions does not mean that DOH did so as well in issuing a statewide 
emergency rule. More fundamentally, even as alleged, the employers’ actions did not 
“single out the religious for disfavored treatment,” Trinity Lutheran Church of 
Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2020 (2017), but rather treated claims for 
religious exemptions the same as any other type of claim for an exemption—with the 
 
32 For example, plaintiffs point out (Br. at 7) that the August 18 Order provided 
that the COVID-19 vaccination requirement “shall be subject to a reasonable accom-
modation” for medically ineligible staff (App. 103), while the emergency rule says that 
the requirement “shall be inapplicable,” § 2.61(d)(1). But plaintiffs fail to note that 
the emergency rule goes on to talk specifically about providing and documenting “any 
reasonable accommodation.”  

 
26 
sole exception of the narrow medical exemption, which is unique for reasons 
previously explained (WTP Opp. at 28-31).  
Fourth, plaintiffs assert that various statements by Governor Hochul “reflected 
antipathy toward religious objectors.” (Br. at 21.) But as defendants have explained 
(WTP Opp. at 24), plaintiffs have failed to establish any nexus between these 
statements and DOH’s issuance of this emergency rule. The quoted statements were 
all made weeks after the emergency rule was adopted, and none of them came from 
the actual decision-makers who actually considered and issued the rule (the DOH 
Commissioner and twenty-four members of the Public Health and Health Planning 
Council). Many of the Governor’s statements were also not about the emergency rule 
or healthcare workers at all, but instead were broader calls for the public to become 
vaccinated. (App. 27-28; WTP, at *10.) And despite plaintiffs’ attempt to argue 
otherwise, the full context of the Governor’s statements reveals that she was speaking 
positively about religion, rather than disparaging religious beliefs: that is, she was 
“express[ing] general support for religious principles that she believes guide commu-
nity members to care for one another by receiving the COVID-19 vaccine.” (App. 28-
29; WTP, at *10.) This Court’s concerns about state officials’ declarations of religious 
hostility are simply not triggered when, as here, a state official invokes her own 
personal religious beliefs to support public policy; “otherwise, politicians’ frequent use 
of religious rhetoric to support their positions would render many government actions 
non-neutral.” (App. 28; WTP, at *10. (quotation marks omitted).)  

 
27 
Finally, plaintiffs claim that DOH’s emergency rule does not satisfy strict 
scrutiny. (Br. at 25.) At the outset, that argument fails because strict scrutiny does 
not apply, and the rule easily satisfies rational-basis review, as plaintiffs do not 
contest. (WTP Opp. at 32-34.) But plaintiffs’ arguments under strict scrutiny also fail 
on their own terms. 
Plaintiffs principally argue that DOH has failed to show narrow tailoring 
because New York is “a national outlier” (Br. at 25) in not allowing religious exemp-
tions. That claim is an overstatement. Both Maine and Rhode Island have similarly 
required healthcare workers to receive a COVID-19 vaccination without providing a 
religious exemption. See Mills, 16 F.4th at 24; Dr. T. v. Alexander-Scott, No. 21-cv-
387, 2021 WL 4476784, at *1 (D.R.I. Sept. 30, 2021). And in the context of mandatory 
vaccination requirements for schoolchildren, many States in addition to New York no 
longer allow for religious exemptions, including California, Connecticut, Maine, 
Mississippi, and West Virginia.33 Indeed, the Fourth Circuit rejected a Free Exercise 
challenge to West Virginia’s mandatory childhood vaccination statute, which, like 
DOH’s emergency rule, recognized only medical but not religious exemptions. See 
Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348, 353-54 (4th Cir. 2011); see 
also F.F. v. State, 194 A.D.3d 80, 88 (3d Dep’t) (rejecting Free Exercise challenge to 
 
33 See Cal. Health & Safety Code § 120325 et seq. (Westlaw 2021); Conn. Gen. 
Stat. Ann. § 10-204a (Westlaw 2021); Me. Rev. Stat. Ann. tit. 20-A, § 6355 (Westlaw 
2021); Miss. Code Ann. § 41-23-37 (Westlaw 2021); W. Va. Code Ann. § 16-3-4 
(Westlaw 2021). 

 
28 
removal of religious exemption for schoolchildren), appeal dismissed & lv. denied, 37 
N.Y.3d 1040 (2021). 
More fundamentally, DOH was not obligated to follow the choices of other 
States that have allowed religious exemptions from COVID-19 vaccination require-
ments. “It is one of the happy incidents of the federal system that a single courageous 
state may” chart its own course and depart from the policies of other States. New 
State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). And 
state public health officials have the greatest latitude when, as here, there remains 
significant uncertainty about the best manner of responding to a devastating 
infectious disease. As plaintiffs acknowledge (Br. at 26-27), States have taken a wide 
variety of approaches to COVID-19, with some requiring vaccinations (among 
healthcare workers or other populations), and others going in the opposite direction 
and prohibiting vaccination requirements. See In re State, No. 21-873, 2021 WL 
4785741, at *1 (Tex. Oct. 14, 2021). Strict scrutiny does not constrain States to adopt 
the lowest-common-denominator policy of their fellow States. Cf. Bell v. Wolfish, 441 
U.S. 520, 554 (1979) (“the Due Process Clause does not mandate a ‘lowest common 
denominator’ security standard, whereby a practice permitted at one penal 
institution must be permitted at all institutions”). And when, as here, policymakers 
“undertake[] to act in areas fraught with medical and scientific uncertainties . . . 
courts should be cautious” not to override those expert judgments based on their own 
litigation-driven view of the facts. Marshall v. United States, 414 U.S. 417, 427 (1974).  

 
29 
In any event, New York’s unique experience with COVID-19 would justify even 
a truly unique approach to protecting the healthcare sector here. New York bore the 
brunt of the initial wave of COVID-19, which tore through New York City in March 
and April 2020. As an amicus observed below, “[d]uring the first wave, healthcare 
workers were much more likely to contract the virus than the general population,” 
and “[r]ates of infection and death were highest among frontline staff, such as nurses 
and physicians.” Br. for Amicus Curiae Greater N.Y. Hosp. Ass’n in Supp. of Defs.-
Appellees at 3, CA2 No. 21-2179, ECF No. 124. Given New York’s experience at the 
forefront of responding to the COVID-19 pandemic in the United States, it is entirely 
unsurprising that New York would be a leader in mandating COVID-19 vaccinations 
for all healthcare workers medically eligible to receive one. 
2. 
Plaintiffs are unlikely to succeed on their Title VII 
preemption claim. 
a. Plaintiffs are also unlikely to succeed on their claim invoking Title VII 
because they have failed to show the type of irreconcilable conflict between Title VII 
and DOH’s emergency rule that would be necessary to establish federal preemption. 
Beyond the ordinary presumption against preemption, see Gregory v. Ashcroft, 501 
U.S. 452, 460-61 (1991), in enacting Title VII, Congress included two provisions 
explicitly disclaiming “any intent categorically to pre-empt state law”; those 
provisions “severely limit Title VII’s pre-emptive effect.” California Fed. Sav. & Loan 
Ass’n v. Guerra, 479 U.S. 272, 281, 282 (1987) (op. of Marshall, J.). Congress provided 
that the Civil Rights Act as a whole should not be construed “as indicating an intent 

 
30 
on the part of Congress to occupy the field” in which any title operates. 42 U.S.C. 
§ 2000h-4. And Title VII specifically does not “exempt or relieve any person from any 
liability, duty, penalty, or punishment provided by any present or future law of any 
State”—except in the limited circumstance where a state law “require[s] or permit[s] 
the doing of any act which would be an unlawful employment practice,” and thus 
results in an actual conflict with Title VII. Id. § 2000e-7. Plaintiffs have failed to show 
that the DOH emergency rule conflicts with federal law under these standards. 
First, plaintiffs’ Title VII claim rests on the erroneous factual premise that the 
emergency rule implements a “categorical ban on religious accommodations.” (Br. at 
29.) The Second Circuit correctly rejected this premise, explaining that the rule “does 
not prevent employees from seeking a religious accommodation allowing them to 
continue working consistent with the Rule, while avoiding the vaccination 
requirement.” (App. 42; WTP, at *17; cf. Mills, 16 F.4th at 28 (reaching similar 
conclusion regarding Maine’s rule).) Specifically, because the rule applies only to 
personnel “who 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(a)(2), nothing in the rule bars employees from being 
reassigned to activities that would not be covered by this language, such as remote 
work.  
Plaintiffs argue that the emergency rule precludes employers from offering the 
particular accommodation that they would prefer—namely, continuing “physical 
contact with patients or other employees” despite being unvaccinated. (Br. at 31.) But 

 
31 
Title VII does not require that employees receive their preferred accommodation; 
rather, “any reasonable accommodation by the employer is sufficient to meet its 
accommodation obligation.” Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986); 
see also Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir. 2002). And on this threadbare 
record, plaintiffs have not established whether they have requested (or whether their 
employers can make available) reassignments or other adjustments that would 
remove them from the scope of the emergency rule and allow them to continue 
working without exposing other personnel, patients, or residents to COVID-19. 
Although plaintiffs sometimes assume that any such accommodation is categorically 
unavailable (see, e.g., Br. at 32 n.30), their own allegations suggest otherwise: for 
example, at least one plaintiff “has been 100% remote for the past 18 months” (App. 
171), work that would appear to be outside the scope of the emergency rule. 
“[W]ithout any data in the record,” the court below properly “decline[d] to draw any 
conclusion about the availability of reasonable accommodation based solely on 
surmise and speculation.” (App. 43; WTP, at *17.)  
The record is equally devoid of any evidence to support plaintiffs’ assertion (Br. 
at 31-32) that their employers are offering accommodations to employees with medical 
exemptions while denying comparable accommodations to employees with religious 
objections to the COVID-19 vaccines. As this Court has recognized, such claims of 
discriminatory accommodation policies “turn[] on factual inquiry into past and 
present administration” of accommodations by particular employers. Ansonia Bd. of 
Educ, 479 U.S. at 70. But here, no employers are identified; there is no evidence of 

 
32 
“Plaintiffs’ interactions with their employers” or their employers’ accommodations for 
medically ineligible employees (App. 43; WTP, at *17); and the emergency rule itself 
does not dictate any particular accommodations, see § 2.61(d)(1). As the Second Circuit 
correctly noted, “the Rule does not prevent healthcare entities from taking additional 
precautions to minimize the transmission risk posed by medically exempt employees” 
beyond simply requiring personal protective equipment (App. 43; WTP, at *17 n.33), 
and plaintiffs can point to no evidence that employers have uniformly declined to 
adopt such additional precautions for medically ineligible staff. This barren factual 
record thus does not support plaintiffs’ unsupported assertion that their employers 
are administering accommodations in an impermissibly discriminatory way. 
Second, plaintiffs have not shown an irreconcilable conflict between the 
emergency rule and Title VII because the accommodation they prefer—working 
directly 
with 
patients, 
residents, 
and 
other 
personnel 
while 
remaining 
unvaccinated—is not required by Title VII, even assuming that other accommo-
dations were not available. Title VII requires employers only to make reasonable 
accommodations that do not impose more than “a de minimis cost.” Trans World 
Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). And this Court has expressly 
recognized that such costs can justify an employer’s rejection of a requested religious 
accommodation. For example, this Court concluded in Hardison that Title VII did not 
prohibit the termination of an employee whose religious beliefs prohibited him from 
working on Saturdays where the proposed scheduling accommodations would involve 

 
33 
costs in the form of “lost efficiency in other jobs or higher wages.” Id. at 84; see also 
Mills, 16 F.4th at 36.  
In weighing whether a proposed accommodation is unreasonable or would 
impose an undue hardship, courts give heavy weight to workplace safety. “Title VII 
does not require that safety be subordinated to the religious beliefs of an employee.” 
Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 521 (6th Cir. 1975). Thus, 
courts have upheld employers’ rejection of accommodations that would compromise 
safety in the workplace, such as a subway worker’s request not to wear a hard hat,34 
or a firefighter’s request to grow a beard that would interfere with his ability to wear 
a respirator.35 These decisions reflect the critical understanding that workplace 
safety standards protect others besides just the employee requesting the accommo-
dation, and further ensure that employers can effectively provide goods and services. 
Title VII thus does not require accommodations that could be provided “only at the 
expense of others,” or that would undermine the employer’s operations. Hardison, 
432 U.S. at 81; see also Knight v. Connecticut Dep’t of Public Health, 275 F.3d 156, 
168 (2d Cir. 2001) (state agency not required to allow employees “to evangelize while 
 
34 Kalsi v. New York City Transit Auth., 62 F. Supp. 2d 745, 758 (E.D.N.Y. 
1998), aff’d on op. below, 189 F.3d 461 (2d Cir. 1999). 
35 Hamilton v. City of New York, No. 18-cv-4657, 2021 WL 4439974, at *6 
(E.D.N.Y. Sept. 28, 2021); see also Sides v. NYS Div. of State Police, No. 03-cv-153, 
2005 WL 1523557, at *2, 6 (N.D.N.Y. 2005) (refusal of New York State Police to hire 
applicant who could not work on the Sabbath did not violate Title VII because 
proposed accommodation “could conceivably threaten to compromise public safety”). 

 
34 
providing services to clients” given that such an accommodation “would jeopardize 
the state’s ability to provide services in a religion-neutral” manner).  
Here, plaintiffs’ requested religious accommodation would both risk workplace 
safety and undermine DOH’s policy of promoting public health. See supra at 11-13. 
Because these consequences impose more than a de minimis cost, plaintiffs’ proffered 
accommodation is not required under Title VII. Accordingly, even if plaintiffs cannot 
be reassigned, Title VII does not obligate plaintiffs’ employers to subordinate the 
health and safety of their patients, residents, and workers to plaintiffs’ religious 
beliefs.  
b. Plaintiffs respond (e.g., Br. at 34) that some employers may want to allow 
an unvaccinated healthcare worker to continue coming into contact with other people, 
and that the emergency rule conflicts with Title VII by forbidding such voluntary 
arrangements. This argument for preemption rests on two fundamentally mistaken 
premises.  
First, plaintiffs mistakenly assume that the religious exemptions they have 
previously been granted necessarily reflected a judgment by their employers that 
they faced no “undue hardship” under Title VII from having unvaccinated workers 
interact with others. That assumption is unfounded. Many employers may simply 
have been responding to the temporary restraining orders issued by lower courts 
against the emergency rule—including orders that did not involve a Title VII claim 
at all. See, e.g., We The Patriots USA, Inc. v. Hochul, No. 21-2179 (2d Cir. Sept. 30, 
2021), ECF No. 65. Other employers may have been motivated by fear of litigation 

 
35 
from employees like these plaintiffs, or other factors unrelated to Title VII. Plaintiffs 
thus have no basis beyond conjecture to surmise that the religious exemptions they 
have received necessarily reflected their employers’ views of undue hardship under 
Title VII. 
Second, even if a particular employer were willing to accept the risk of an 
unvaccinated healthcare worker, that willingness would not make the employer’s 
accommodation one that is required by Title VII. Because Title VII imposes a floor 
but not a ceiling, employers are free to offer accommodations beyond what the federal 
statute would require—and States are not barred from regulating such employer 
decisions outside the scope of Title VII. See California Fed. Sav., 479 U.S. at 284-87 
(rejecting preemption claim against California statute that provided pregnancy 
disability benefits beyond what Title VII required). Indeed, Title VII respects rather 
than undermines the States’ traditional prerogative to regulate health and safety: as 
discussed (see supra at 33), “safety considerations are highly relevant” to the question 
of which accommodations may “reasonably” be offered without imposing an “undue 
hardship on the conduct of the employer’s business,” 42 U.S.C. § 2000e(j). See Draper, 
527 F.2d at 521; cf. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 78-79 (2002) 
(Americans with Disabilities Act allows “employer[s] to screen out a potential worker 
. . . not only for risks that he would pose to others in the workplace but for risks on 
the job to his own health or safety”).  
Here, the emergency rule reflects DOH’s expert judgment that COVID-19 
vaccination is essential to protect healthcare workers, the vulnerable populations 

 
36 
they serve, and the healthcare system as a whole. And this point would be true even 
if a particular employer were willing to overlook such risks to retain a particular 
employee—just as an employer’s willingness to excuse a surgeon’s refusal to wash 
her hands would not eliminate the harms caused by that decision. Nothing in Title 
VII supports plaintiffs’ view that the statute respects only employers’ safety concerns, 
while disregarding the States’ judgments about the minimum requirements to protect 
health and safety in the workplace—judgments that ordinarily receive heavy weight 
in any preemption analysis. See Hillsborough Cnty., Fla. v. Automated Med. Lab’ys, 
Inc., 471 U.S. 707, 715 (1985). Put simply, the statute does not allow an employer to 
ignore important state health and safety regulations under the guise of complying 
with Title VII.  
c. Finally, plaintiffs assert (Br. at 30) that an interim final rule recently 
promulgated by the Centers for Medicare and Medicaid Services (CMS) and guidance 
issued by the Equal Employment Opportunity Commission (EEOC) support their 
Title VII claim. See Medicare and Medicaid Programs – Omnibus COVID-19 Health 
Care Staff Vaccination, 86 Fed. Reg. 61,555 (Nov. 5, 2021); EEOC, What You Should 
Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws 
(updated Oct. 28, 2021). The courts below did not consider the effect of these 
documents, and this Court should decline to do so for the first time on this emergency 
stay application. See Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (“[W]e are a 
court of review, not of first view.”). 

 
37 
In any event, neither the CMS interim final rule nor the EEOC guidance 
supports plaintiffs’ claim. The CMS rule merely advises covered facilities that Title 
VII continues to apply—an undisputed proposition. 86 Fed. Reg. at 61,572. Nothing 
in the CMS rule dictates that particular accommodations be provided. And nothing 
in the CMS rule requires employers to disregard the risk of COVID-19 spread by 
unvaccinated individuals; to the contrary, the rule expressly acknowledges that “[i]n 
granting such exemptions or accommodations, employers must ensure that they 
minimize the risk of transmission of COVID-19 to at-risk individuals, in keeping with 
their obligation to protect the health and safety of patients.” Id.  
The EEOC guidance likewise does not support plaintiffs’ claim that they are 
entitled to their preferred accommodation. Indeed, the EEOC guidance recognizes 
that permissible Title VII accommodations would include “a modified shift,” 
“telework,” or “reassignment”—all of which are permitted by DOH’s emergency rule. 
EEOC, What You Should Know, supra. EEOC’s guidance thus confirms that the 
emergency rule does not categorically prohibit accommodations that would be allowed 
under Title VII.  
3. 
Plaintiffs’ objection to a nonparty state agency’s 
administration of unemployment benefits was never 
presented below, is unrelated to the emergency rule at 
issue here, and cannot support a stay of the rule. 
Plaintiffs argue—for the first time in this litigation—that DOH’s emergency 
rule triggers strict scrutiny in light of subsequent guidance issued by a nonparty state 
agency, the New York State Department of Labor (DOL), which says that healthcare 

 
38 
workers may be ineligible for unemployment insurance benefits if they “voluntarily 
quit or are terminated for refusing an employer-mandated vaccination . . . absent a 
valid request for accommodation.”36 According to plaintiffs, because only medical 
exemptions are available under DOH’s emergency rule, DOL’s new guidance categor-
ically denies unemployment insurance benefits to healthcare workers with religious 
objections to COVID-19 vaccination and thus “target[s] religious objectors.” (Br. at 
23.) 
As an initial matter, this Court should decline to consider this new argument, 
which plaintiffs raised for the first time in their stay application. Plaintiffs failed to 
raise this argument below—including in their merits brief to the Second Circuit, 
which they filed nearly one month after the DOL guidance was issued.37 Plaintiffs 
have also never directly challenged DOL’s guidance or sued DOL itself. As a result, 
no court below addressed this argument. See Cutter, 544 U.S. at 718 n.7. And DOL’s 
guidance has no direct nexus to plaintiffs’ claims here: it was issued by an agency 
that is not a party to this case; it addresses eligibility requirements for unemployment 
benefits that are not at issue here; and it does not affect the implementation of the 
DOH emergency rule that is actually under review. 
 
36 See DOL, Unemployment Insurance: Top Frequently Asked Questions. In 
their application, plaintiffs erroneously assert that the website is maintained by 
DOH. (Br. at 9, 23.) It is maintained by DOL. 
37 See Br. for Pls.-Appellees, Dr. A. v. Hochul, No. 21-2566 (2d Cir. Oct. 22, 
2021), ECF No. 38.  

 
39 
In any event, plaintiffs simply misinterpret the guidance. DOL does not 
categorically deny unemployment insurance benefits to healthcare workers who quit 
or are terminated because they refuse to take the COVID-19 vaccination on religious 
grounds. As the guidance makes clear, benefits are available so long as there was “a 
valid request for accommodation.” And, for purposes of determining eligibility for 
unemployment insurance benefits, a valid request may exist even if an employer was 
unable or unwilling to provide the accommodation, thereby leading to the employee’s 
resignation or termination. There is thus no basis on this record to presume that 
healthcare workers will in fact be denied unemployment insurance benefits if they 
lose their jobs based on their religious objections to receiving the COVID-19 vaccines.  
C. 
The Absence of Irreparable Injury and the Balance of 
the Equities Weigh Heavily Against an Injunction. 
The extraordinary relief of an emergency stay is also unwarranted here for the 
additional reason that these plaintiffs have failed to establish either irreparable 
injury or a balance of the equities in their favor. 
1. 
Plaintiffs have failed to establish that they will suffer any harms that 
are either imminent or irreparable. First, plaintiffs’ threadbare evidence fails to 
establish that they face any imminent threat of adverse employment actions. (The 
district court notably did not rely on any such harm in issuing its preliminary 
injunction. (App. 71-72, 84-85.)) Nothing in the emergency rule requires employers to 
terminate or otherwise take adverse employment actions against unvaccinated 
healthcare workers. Rather, employers can comply with the emergency rule by 

 
40 
reassigning unvaccinated workers to activities where, if they were infected, they 
would not pose a risk of transmitting COVID-19 to patients, residents, or other 
workers. See § 2.61(a)(2). Plaintiffs have not proffered any evidence that they have 
sought (or been denied) such a reassignment. 
Second, even if plaintiffs did face the imminent harms they allege, it is well-
established that loss of employment, and the resulting financial loss, do not constitute 
“irreparable harm” because plaintiffs can be fully compensated by reinstatement or 
money damages, including in claims against their employers. See Sampson v. 
Murray, 415 U.S. 61, 90-92 (1974). Plaintiffs also assert irreparable injury from an 
imminent deprivation of their First Amendment right to free exercise. See Roman 
Catholic Diocese, 141 S. Ct. at 67. But plaintiffs have not established that DOH’s 
emergency rule directly compels them to act in violation of their religious beliefs. 
They remain free to refuse a COVID-19 vaccine, subject to potential employment 
consequences. This purported harm bears no resemblance to the harm in Roman 
Catholic Diocese, where this Court found that the executive orders under review 
directly interfered with religious exercise by barring “the great majority of those who 
wish[ed] to attend” religious services from doing so. Id. at 67-68. 
In contrast to plaintiffs’ failure to show imminent irreparable harm, the public 
faces the risk of imminent irreparable harm if DOH’s emergency rule were stayed. 
See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Achieving high 
vaccination rates in particularly vulnerable settings is of the utmost importance. 
Those vulnerable populations include immunocompromised patients especially 

 
41 
susceptible to viral infections and people who cannot receive the COVID-19 vaccine 
because they are too young or have contraindications. The COVID-19 vaccines have 
been proven to be extremely safe and effective at protecting healthcare workers 
themselves and the populations they serve from suffering severe complications from 
COVID-19. See supra at 4-5. And the vaccination requirement will also protect others 
who need emergency medical treatment from the consequences of staffing shortages 
and overstrained emergency rooms that could follow a COVID-19 outbreak among 
healthcare workers.  
These concerns are especially urgent now in light of the uncertainty 
surrounding the scope of future COVID-19 outbreaks. The emergence and prevalence 
of the Delta variant have led experts to predict that there will be a fall surge in 
COVID-19 infections. And limited healthcare resources will soon face additional 
strains due to seasonal influenza and other diseases that accompany the onset of fall 
and winter. Vaccination of healthcare workers will help to prevent additional burdens 
from being inflicted on the healthcare sector at the precise moment when it is at risk 
of becoming overtaxed. Accordingly, the balance of the equities tips decidedly in favor 
of defendants.  
 
 

42 
CONCLUSION 
The emergency application for a writ of injunction should be denied. 
Dated: 
New York, NY 
November 16, 2021 
Respectfully submitted, 
LETITIA JAMES 
  Attorney General 
  State of New York 
By: ____________________________ 
BARBARA D. UNDERWOOD* 
  Solicitor General 
STEVEN C. WU 
  Deputy Solicitor General 
MARK S. GRUBE 
DUSTIN J. BROCKNER 
  Assistant Solicitors General 
* Counsel of Record
28 Liberty Street 
New York, NY 10005 
(212) 416-8016
barbara.underwood@ag.ny.gov
/s/ Barbara D. Underwood

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