Reply Brief in Support of Emergency Application — Dr. A v. Hochul

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No. 21A145 
 
 
 
 
In the Supreme Court of the United States 
 
DR. A., ET AL.,  
Applicants, 
v. 
KATHY HOCHUL, GOVERNOR OF THE STATE OF NEW YORK, ET AL.,  
 
Respondents. 
 
 
REPLY IN SUPPORT OF EMERGENCY APPLICATION FOR WRIT OF 
INJUNCTION OR, IN THE ALTERNATIVE, PETITION FOR WRIT OF 
CERTIORARI AND STAY PENDING RESOLUTION 
 
To the Honorable Sonia Sotomayor, Associate Justice of the Supreme Court  
of the United States and Circuit Justice for the Second Circuit 
 
 
MARK RIENZI 
DANIEL BLOMBERG  
DIANA VERM THOMSON 
ADÈLE KEIM 
KAYLA A. TONEY 
JAMES J. KIM 
THE BECKET FUND FOR RELIGIOUS LIBERTY 
1919 Pennsylvania Ave. NW, Suite 400 
Washington, D.C. 20006 
 
 
 
 
 
(202) 955-0095 
mrienzi@becketlaw.org 
 
THOMAS BREJCHA 
   Counsel of Record 
STEPHEN M. CRAMPTON 
THOMAS MORE SOCIETY 
309 West Washington Street, Suite 1250 
Chicago, IL 60606 
tbrejcha@thomasmoresociety.org 
CHRISTOPHER A. FERRARA 
THOMAS MORE SOCIETY 
148-29 Cross Island Parkway 
Whitestone, Queens NY 11357 
(718) 357-1040 
MICHAEL MCHALE 
THOMAS MORE SOCIETY 
10506 Burt Circle, Suite 110 
Omaha, NE 68114 
 
Counsel for Applicants 

i 
 
TABLE OF CONTENTS 
TABLE OF AUTHORITIES .......................................................................................... ii 
INTRODUCTION .......................................................................................................... 1 
 
I. New York’s mandate violates the Free Exercise Clause. .................................... 3 
 
 
A. Strict scrutiny applies. ................................................................................... 3 
 
 
B. New York’s mandate fails strict scrutiny. ..................................................... 7 
 
II. New York’s mandate conflicts with Title VII. .................................................. 10 
 
III. Emergency relief is warranted. ....................................................................... 16 
CONCLUSION ............................................................................................................. 19 
 
 

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TABLE OF AUTHORITIES 
Page(s) 
Cases 
Agudath Israel of Am. v. Cuomo, 
No. 20-cv-4834 (N.D.N.Y. Feb. 9, 2021) ................................................................... 9 
Agudath Israel of Am. v. Cuomo, 
No. 20A90 (Nov. 25, 2020) ...................................................................................... 18 
Ansonia Bd. of Educ. v. Philbrook, 
479 U.S. 60 (1986) .................................................................................................. 13 
Dahl v. Board of Trustees of W. Mich. Univ., 
15 F.4th 728 (6th Cir. 2021) ................................................................................... 18 
Roman Catholic Diocese of Brooklyn v. Cuomo, 
141 S. Ct. 63 (2020) ...................................................................................... 9, 16, 18 
Does v. Mills, 
16 F.4th 20 (1st Cir. 2021) ..................................................................................... 18 
EEOC v. Abercrombie & Fitch Stores, Inc., 
575 U.S. 768 (2015) ................................................................................................ 10 
Gonzales v. O Centro Espírita Beneficente União do Vegetal,  
546 U.S. 418 (2006) .................................................................................................. 5 
Hobby Lobby Stores, Inc. v. Sebelius,  
723 F.3d 1114 (10th Cir. 2013) .............................................................................. 11  
Holt v. Hobbs, 
574 U.S. 352 (2015) ............................................................................................ 8, 16 
Klaassen v. Trustees of Ind. Univ., 
7 F.4th 592 (7th Cir. 2021) ..................................................................................... 18 
Lebron v. National R.R. Passenger Corp., 
513 U.S. 374 (1995) .................................................................................................. 7 
Mast v. Fillmore County, 
141 S. Ct. 2430 (2021) .............................................................................................. 8 
Ortiz-Diaz v. United States Dep’t of Hous. & Urban Dev., 
867 F.3d 70 (D.C. Cir. 2017) .................................................................................. 13 

iii 
Sambrano v. United Airlines, Inc., 
No. 21-1074 (N.D. Tex. filed Sept. 21, 2021) ......................................................... 18 
Schad v. Borough of Mount Ephraim, 
452 U.S. 61 (1981) .................................................................................................. 14 
Schneider v. State, 
308 U.S. 147 (1938) ................................................................................................ 14 
Yee v. City of Escondido, 
503 U.S. 519 (1992) .................................................................................................. 7 
Statutes 
42 U.S.C. 2000e ............................................................................................................ 14 
42 U.S.C. 2000e-2 ........................................................................................................ 13 
42 U.S.C. 2000e-7 ........................................................................................................ 13 
Other Authorities 
2 N.Y.C.R.R. § 12 ......................................................................................................... 15 
Centers for Disease Control and Prevention, COVID-19 Vaccine 
Booster Shots (Nov. 9, 2021) .................................................................................... 5 
EEOC, What You Should Know About COVID-19 and the ADA, the 
Rehabilitation Act, and Other EEO Laws (updated Oct. 28, 2021) ...................... 10 
Fed. R. Civ. P. 65 ......................................................................................................... 11 
Rob Frehse, New York State Health Care Workers Will No Longer Have 
Religious Exemption to COVID-19 Vaccine Mandate, Court Rules, 
CNN (Oct. 29, 2021, 10:29 PM) .............................................................................. 14 
Amanda Hull, How Enforceable is the Healthcare Vaccine Mandate in 
New York?, CNY Central (Sept. 29, 2021) ............................................................. 14 
N.Y. State Dep’t of Health, Frequently Asked Questions (FAQs) 
Regarding the August 26, 2021 - Prevention of COVID-19 
Transmission by Covered Entities Emergency Regulation  
(last visited Nov. 16, 2021) ..................................................................................... 11 
N.Y. State Governor’s Office, In Preparation for Monday Vaccination 
Deadline, Governor Hochul Releases Comprehensive Plan to 
Address Preventable Health Care Staffing Shortage (Sept. 25, 2021) ................... 6 

1 
INTRODUCTION 
This week, New York told hospitals and nursing homes that all employees who 
were “previously granted religious exemptions” must be vaccinated or receive a 
medical exemption by Monday, November 22. New York allows thousands of 
unvaccinated private healthcare workers to continue working if they have medical 
reasons for refusing the vaccine, but it is now forcing employers to remove private 
healthcare workers with religious objections from the workplace—even if the 
employer can provide an exemption without undue hardship and wants to do so. 
Employers can give medical objectors “any reasonable accommodation,” but New 
York allows only one “accommodation” for religious objectors: banishment from the 
premises so they no longer count as “personnel” at all. And New York gives no quarter 
to the banished: they will lose their jobs, their admitting privileges, and even their 
unemployment benefits.  
 
The application established that this direct attack on religious accommodations 
violates both the Free Exercise Clause and Title VII. By outlawing religious 
exemptions, denigrating the religious beliefs of objectors, treating unvaccinated 
religious workers as “unacceptable” while accepting thousands of other unvaccinated 
workers, and foreclosing unemployment benefits, New York’s mandate is anything 
but neutral and generally applicable. Both its own behavior and the example of the 
federal government and 47 states demonstrate that New York fails strict scrutiny. 
And by precluding employers from doing what Title VII requires—that is, giving 

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reasonable accommodations for religious exercise in cases with no undue hardship—
New York defiantly forbids what federal law commands.  
 
In its opposition, New York does not deny these key facts so much as pretend they 
are unproblematic and ordinary. But there is nothing ordinary about what Applicants 
face here: rule by fiat that orders their employers to remove them by a date certain 
(now Monday, November 22), denies them other jobs in their fields, and removes 
the safety net of unemployment benefits. The fact that New York’s response nowhere 
mentions its newly-imposed November 22 deadline shows that it views Applicants’ 
rights to be of little significance. New York seems to believe that the exigencies of the 
moment allow it to mete out these punishments swiftly and without prior notice while 
facing judgment for its own actions slowly, or not at all. But the same exigencies that 
allow New York to wield power expeditiously should also allow Applicants to seek 
this Court’s protection expeditiously, particularly against clear violations of their 
constitutional and statutory rights.  
 
New York cannot escape scrutiny by complaining that it needs more information 
about Applicants, their employers, and their discussions about religious exemptions. 
That criticism is wrong on the facts and mistaken on the law. The sworn evidence in 
the verified complaint shows that Applicants had their religious exemptions 
eliminated or foreclosed because of New York’s rule. And the challenge here is 
precisely to the fact that New York’s approach globally forbids the kind of employer- 
and employee-specific consideration of religious accommodations that would allow 

3 
personnel to remain on-site. Having taken a poleaxe to religious exemptions across 
the state, New York’s eleventh-hour plea for scalpel-level details is unavailing. 
 
Two Terms ago in American Legion, this Court explained that the “Religion 
Clauses of the Constitution aim to foster a society in which people of all beliefs can 
live together harmoniously.” But the Religion Clauses can only do that if the courts 
enforce them and governments respect them. Here, New York aggressively targeted 
religious conduct qua religious conduct, and the Second Circuit wrote off the 
admittedly “meaningful burdens” on religious exercise as just “not of a constitutional 
dimension.” The result is that New York’s egregious behavior threatens to impose 
severe, immediate, and irreparable harm on Applicants and thousands of healthcare 
workers like them—all at a time when New York has acknowledged a dire need for 
more healthcare workers. This Court need not fully flesh out all aspects of Free 
Exercise doctrine to hold that, under any standard, New York has fallen woefully 
short of what the Constitution requires. Applicants need and deserve protection now. 
I. New York’s mandate violates the Free Exercise Clause. 
A. Strict scrutiny applies.  
New York does not dispute that Applicants have raised religious objections to the 
COVID vaccine, and that those objections are sincere. Opp.21. Nor does it deny that 
it removed the religious exemption to its mandate while keeping the medical 
exemption, and that medically exempt employees can be given “any reasonable 
accommodation” while religious objectors can only be removed from the worksite so 
that they no longer qualify as “personnel.” App.109 at (d)(1). New York also does not 
dispute that thousands of medically exempt unvaccinated workers are allowed to 

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continue working on-site while religious objectors are not. App.109 at (d)(1); Opp.14. 
Nor does New York deny the substance of Governor Hochul’s comments about people 
with religious objections to the COVID vaccine (though it remarkably attempts to 
recast her denigration of Applicants’ beliefs as “speaking positively about religion”). 
Opp.26. These undisputed facts establish that Section 2.61 is subject to strict 
scrutiny. Application at 16-24. 
In response, New York makes three main counterarguments. First, it argues that 
it can treat religious objectors worse than medical objectors because there are (on its 
telling) many more religious objectors than medical objectors. Opp.14. This argument 
gets the analysis backwards: the relevant number is the thousands of unvaccinated 
medically exempt workers who are permitted to continue working on-site. That 
undisputed fact forecloses any claim that the law is generally applicable, because of 
the entirely “reasonable” truth that the virus doesn’t care whether someone is 
unvaccinated for religious or secular reasons. App.33; Application at 17. 
New York offers a series of unsupported and contradictory post-hoc 
rationalizations for why medically exempt unvaccinated employees might be less 
dangerous. First, New York claims (without any evidence) that “many” of the 
medically exempt employees will have suffered an allergic reaction to a first dose of 
the vaccine and therefore have “at least partial protection.” Opp.23. Even aside from 
the oddity of making this claim at the same time the State aggressively pushes for 

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people to receive a third shot because the effect of two shots seems to be waning,1 one 
could make the exact same argument about Applicants, many of whom have had 
COVID, App.158, 162, 165, 169, and therefore also have “at least partial protection.” 
New York then turns around and assures the Court (again, without any evidence) 
that medical exemptions are “predominantly temporary”—which surely would not 
describe the class of people with allergic reactions. These post-hoc rationalizations 
cannot elide the simple truth: unvaccinated employees with medical exemptions carry 
the exact same risks as unvaccinated employees with religious objections. Yet New 
York deems one risk “unacceptable” and the other perfectly acceptable. 
Even when it shifts focus to the number of religious objectors as somehow proving 
the law generally applicable, New York offers little in the way of verified evidence to 
support its factual claim, and nothing near what it would need to meet the burden of 
proof it bears on an injunction application. See Gonzales v. O Centro Espírita 
Beneficente União do Vegetal, 546 U.S. 418, 429 (2006) (burdens at preliminary 
injunction stage track the burdens at trial). It cites to evidence submitted in a 
different case, in a different court, that does not say what New York claims.2 Most 
 
1  Centers for Disease Control and Prevention, COVID-19 Vaccine Booster Shots 
(Nov. 9, 2021), https://perma.cc/4H5W-DPTW. 
2  Opp.14 n.24 (citing Decl. of Valerie A. Deetz ¶ 3, Serafin v. New York State Dep’t 
of Health, Index No. 908296-21 (N.Y. Sup. Ct. Oct. 20, 2021), NYSCEF Doc. No. 56; 
Decl. of Dorothy Persico ¶ 3, Serafin, Index No. 908296-21 (N.Y. Sup. Ct. Oct. 21, 
2021), NYSCEF Doc. No. 57). Before this Court, New York has rechristened its catch-
all category of “other” vaccine exemptions as consisting entirely of “religious” 
exemptions, without acknowledging that “religious exemptions” is a category that its 
statistics do not track. Compare Opp.14-15 (discussing number of personnel reported 
as having “‘other’ (religious) exemptions”) with Application at 17 n.16.  
 

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fundamentally, though, New York’s argument about the number of religious objectors 
is more properly considered as part of New York’s strict scrutiny affirmative 
defense—where it bears the burden of proof. It could present competent evidence 
about this on remand, but if past is prologue, it is unlikely to do so. See infra Section 
I.B. (New York abandoned COVID worship restrictions on remand from this Court). 
Second, New York asserts that it has not used its unemployment insurance 
program to target and punish religious objectors. Opp.39. Before this Court, New 
York asserts that it “does not categorically deny unemployment insurance benefits” 
to religious objectors who lose their jobs, as long as they submit “a valid request for 
accommodation”—even if they were not, in the end, accommodated. Opp.39 (emphasis 
in original). But that is the opposite of what New York has told its own citizens. On 
Saturday, September 25, two days before the first vaccination deadline, Gov. Hochul 
announced that “workers who are terminated because of refusal to be vaccinated are 
not eligible for unemployment insurance absent a valid doctor-approved request for 
medical accommodation.”3 Having publicly announced that the only valid request for 
accommodation is a medical one, and having told this Court and two others that no 
 
 
3  N.Y. State Governor’s Office, In Preparation for Monday Vaccination Deadline, 
Governor Hochul Releases Comprehensive Plan to Address Preventable Health Care 
Staffing Shortage (Sept. 25, 2021), https://perma.cc/2GJV-TLQW (emphasis added).  
 
New York makes much of the fact that unemployment insurance is administered 
by the Department of Labor, which is not a party to this case. Opp.37. But the 
Governor is the head of all 20 of New York’s state agencies, Labor included. She is a 
party to this case, and she is responsible for publicizing the policy that only those 
with a valid medical accommodation request will receive benefits.   

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religious exemptions are allowed, New York should not be heard to suddenly claim 
that it will be magnanimous to religious objectors forced to the unemployment lines.  
Third, New York argues that Applicants have waived any argument that strict 
scrutiny is triggered by Section 2.61’s denial of unemployment benefits to religious 
objectors. Opp.38. As New York is aware, this particular argument could not have 
been raised in the complaint, because Governor Hochul did not announce the 
categorical denial of unemployment benefits to religious objectors until September 
25, well after the lawsuit was filed. But more fundamentally, New York is confusing 
arguments for claims. From the very beginning of this lawsuit, Applicants raised a 
Free Exercise Clause claim and argued that as a result of that claim, New York’s 
mandate was subject to strict scrutiny. App.172-175 (verified complaint). And “[o]nce 
a federal claim is properly presented, a party can make any argument in support of 
that claim; parties are not limited to the precise arguments they made below.” Yee v. 
City of Escondido, 503 U.S. 519, 534 (1992). Applicants’ discussion of New York’s late-
breaking stripping of unemployment benefits is “not a new claim  * * *  but a new 
argument to support what has been [their] consistent claim: that [New York] did not 
accord [them] the rights it was obliged to provide by the First Amendment.” Lebron 
v. National R.R. Passenger Corp., 513 U.S. 374, 379 (1995).  
For all these reasons, strict scrutiny applies.  
B. New York’s mandate fails strict scrutiny. 
In the application, the Applicants also explained that New York cannot hope to 
meet its burden on strict scrutiny. Application at 25-29. New York has failed to 

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provide persuasive reasons as to why it needs greater restrictions than 47 other states 
and the federal government. It has not demonstrated why it cannot extend to 
religious objectors the same precautions it provides to medically exempt employees, 
despite that the risks posed by individuals in both groups remain the same. And New 
York’s punitive methods are the opposite of the least restrictive means of meeting its 
interests. Ibid.  
In response, New York advances two counterarguments. Opp.22-29. First, the 
state argues that “significant uncertainty” surrounding COVID gives it license to 
regulate with “the greatest latitude.” Opp.28. It even claims the right to take “a truly 
unique approach” if it wants to. Opp.29. Despite these grandiose claims to judicial 
deference, New York fails the basics of the strict scrutiny standard as repeatedly 
explained by this Court. Application at 25. Indeed, New York doesn’t once mention 
Holt v. Hobbs, 574 U.S. 352, 369 (2015), much less apply it.  
But as this Court explained in Holt, courts may not “assume a plausible, less 
restrictive alternative would be ineffective” but must justify its decision with 
“persuasive reasons.” 574 U.S. at 369 (cleaned up); see also Mast v. Fillmore County, 
141 S. Ct. 2430, 2433 (2021) (Gorsuch, J., concurring) (noting that because “Montana, 
Wyoming, and other States” provide an accommodation, “the County  * * *  bore the 
burden of presenting a compelling reason why it cannot offer the Amish this same 
alternative” (cleaned up)). New York fails to offer any persuasive reasons why it needs 
to banish religious objectors when 47 other states and the federal government respect 

9 
religious objectors. And without more, New York has not shown that it is using the 
least restrictive means available, and thus fails strict scrutiny. 
New York’s reaction to the Diocese of Brooklyn and Agudath decisions last year is 
particularly instructive. There, as here, New York argued that its far more restrictive 
approach was justified, claiming that the public health sky would fall should the 
Court grant relief. See Opp. at 36, Roman Catholic Diocese of Brooklyn v. Cuomo, 141 
S. Ct. 63 (2020) (No. 20A87) (contending that permitting large religious gatherings 
could place “the entire City and State at risk” (internal quotation marks omitted)). 
But when this Court’s remand gave New York the opportunity to actually 
demonstrate that it could pass strict scrutiny, New York made a telling choice: it quit. 
More specifically, after the remand, New York simply agreed to permanent 
injunctions in both cases, conceding that it actually could not prove the apocalyptic 
claims it had made to this Court just weeks earlier. See, e.g., Permanent Inj. Order 
at 4, Agudath Israel of Am. v. Cuomo, No. 20-cv-4834 (N.D.N.Y. Feb. 9, 2021) 
(“Defendant has agreed to an injunction  * * *  and has not presented additional 
evidence”). Perhaps on remand here, New York would be able to present some 
evidence demonstrating that its vindictive approach to religious objectors passes 
strict scrutiny, despite the fact that most of the country has figured out how to make 
religious objections work while facing the exact same pandemic. But New York has 
not done so yet, and its plea to be allowed to shoot now and provide proof later should 
be rejected. 

10 
Second, New York contends that medical exemptions and religious exemptions 
warrant different treatment because medical ineligibility is “predominantly 
temporary,” and the overall number of religious accommodation requests is higher 
than non-religious requests. Opp.23. But what New York calls “temporary” means 
temporary until the risk is eliminated—i.e., indefinitely. There is no deadline for the 
end of any medical exemption, so New York’s assertion that “a medically ineligible” 
worker’s risk is “correspondingly limited” rings hollow. Opp.23.  
For these reasons, and the reasons in the Application, New York has failed to meet 
strict scrutiny here.  
II. New York’s mandate conflicts with Title VII. 
Title VII requires employers to engage in a good faith process to provide religious 
accommodations to employees and prohibits taking “an adverse employment action 
against an applicant or employee because of any aspect of that individual’s religious 
observance or practice unless the employer demonstrates that it is unable to 
reasonably accommodate that observance or practice without undue hardship.” 
EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 775-776 (2015) (Alito, J., 
concurring). The EEOC instructs that a broad range of accommodations ought to be 
available to employees with religious objections, such as PPE, testing, and social 
distancing—accommodations that have worked well for medically exempt employees 
in New York.4  
 
4  See K.2., K.12., and L.3. at EEOC, What You Should Know About COVID-19 and 
the ADA, the Rehabilitation Act, and Other EEO Laws (updated Oct. 28, 2021), 
https://perma.cc/E3WH-WH7Q. 

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Despite this traditional accommodation regime, New York is forcing employers to 
violate Title VII by firing or banishing employees with religious objections—even 
where employers had already granted them religious exemptions. Just this week, the 
Department of Health directed healthcare administrators to ensure that by 
November 22, 2021, all employees “who were previously granted religious 
exemptions” must show proof of vaccination or a valid medical exemption—or be 
removed as “personnel.” Addendum 6. New York’s suggestion that employers 
“consider reasonable accommodation requests” is mere posturing, because as its 
guidance makes clear, the only “accommodation” that Section 2.61 allows for religious 
objectors is removal from the category of “personnel” entirely—either by termination 
or by relegation to remote work.5 Meanwhile, employers may grant “any reasonable 
accommodation” to medically exempt employees.6 App.109 at (d)(1).  
 
New York offers little in response, mainly arguing that there is not enough of a 
factual record to determine whether Title VII is implicated or not. This is wrong on 
several levels. First, and in accordance with Fed. R. Civ. P. 65, Applicants put in 
ample evidence by means of the verified complaint, which is therefore “deemed 
 
5  N.Y. State Dep’t of Health, Frequently Asked Questions (FAQs) Regarding the 
August 26, 2021 – Prevention of COVID-19 Transmission by Covered Entities 
Emergency Regulation at ¶ 20, https://perma.cc/XZ45-T3TS, (“there are no religious 
exemptions[.]  * * *  [C]overed entities cannot permit unvaccinated individuals to 
continue in ‘personnel’ positions such that if they were infected with COVID-19, they 
could potentially expose other covered personnel, patients, or residents to the 
disease”).  
6  Id. at ¶¶ 17, 18 (“personnel with medical exemptions [may] continue normal job 
responsibilities  * * *  provided that they comply with all applicable requirements for 
personal protective equipment, including masking”; “[t]his regulation does not 
require personnel with medical exemptions to undergo COVID-19 testing”). 

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admitted for preliminary injunction purposes.” Hobby Lobby Stores, Inc. v. Sebelius, 
723 F.3d 1114, 1146 (10th Cir. 2013) (en banc), aff’d sub nom. Burwell v. Hobby Lobby 
Stores, Inc., 573 U.S. 682 (2014) (citations omitted). New York wrongly describes the 
statements in the verified complaint as mere “allegations” when they are in fact 
sworn testimony that New York has not bothered to contest. Opp.21. 
Second, that sworn testimony provides a significant foundation for Applicants’ 
claim regarding Title VII. Four plaintiffs received religious exemptions only to have 
them revoked when New York removed religious exemptions on August 26. 
App.148 ¶¶ 49-50 (Nurse A’s employer informed her that “employees who do not 
comply with the vaccination program by the deadlines above will be placed off duty 
for seven days without pay  * * *  Employees who choose not to meet the program 
requirements after seven days will be deemed to have opted to resign.”); App.152 ¶ 77 
(Dr. F’s employer told him that “his hospital privileges will be suspended” unless he 
shows proof of vaccination); App.163-164 ¶¶ 142-143 (Dr. O); App.169 ¶ 174 (Dr. S). 
Several employers wanted to grant religious exemptions or accommodations but told 
employees, “my hands are tied” by New York’s mandate. App.158-159 ¶ 112 (Nurse 
J). Nurse D’s employer told her that her employment will end, and that “the 
separation will be ‘deemed’ to be voluntary, meaning no unemployment benefits, and 
all health and other benefits will terminate.” App.151 ¶ 68. Applicants are being 
excluded from the workplace too; Dr. G’s employer told him “he will not be allowed to 
enter any of the buildings of the health service, including the hospitals in which he 
works and teaches.” App.154 ¶ 85; see also App.167 ¶ 165 (Technologist P’s employer 

13 
told her that “if she fails to be vaccinated against her religious belief, her security 
badge will be deactivated, she will not be able to access her place of employment and 
will essentially be regarded as a trespasser.”) 
New York also argues that Title VII does not preempt its mandate. Opp.29-30. 
But Title VII does preempt state law “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.” Opp.30 (quoting 42 U.S.C. 2000e-7). By allowing 
only banishment for religious objectors, New York is violating the text of Title VII, 
which makes it an “unlawful employment practice” “to limit, segregate, or classify” 
employees in any way that “would deprive or tend to deprive any individual of 
employment opportunities or otherwise adversely affect his status as an employee, 
because of such individual’s  * * *  religion.” 42 U.S.C. 2000e-2(a)(2); see also Ortiz-
Diaz v. United States Dep’t of Hous. & Urban Dev., 867 F.3d 70, 81 (D.C. Cir. 2017) 
(Kavanaugh, J., concurring) (“transferring an employee because of the employee’s 
[protected basis]  * * *  plainly constitutes discrimination with respect to 
“compensation, terms, conditions, or privileges of employment’ in violation of Title 
VII”) (quoting 42 U.S.C. 2000e-2(a)); see Former EEOC Employees Amicus Br. at 3, 
9-10.7  
 
7  Placing religious objectors on unpaid leave also violates Title VII. See Application 
at 34. Other unvaccinated employees are accommodated without being placed on 
unpaid leave, and accommodations “may not be doled out in a discriminatory 
fashion.” Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 71 (1986). And 15 of 17 of 
Applicants’ employers found that unnecessary when they were allowed to offer 
religious exemptions.  

14 
New York argues that accommodating Applicants with anything beyond remote 
work is, in the State’s “expert judgment,” categorically an undue hardship. Opp.35-
36. But Title VII makes it each “employer[’s]” burden to “demonstrate[]” that on-site 
work is an “undue hardship,” 42 U.S.C. 2000e(j)—a determination which New York 
categorically prohibits. Practically speaking, New York has prevented most 
Applicants from working at all. See, e.g., App.149-150 (ophthalmologist with surgical 
practice); App.152-153, 168-169 (oral surgeons); App.155 (rehabilitation therapist); 
App.163-164 (general surgeon); App.156-158, 165-166 (OB/GYNs). Of the 15,844 
healthcare workers who received religious exemptions under the district court’s 
preliminary injunction, those who still have their jobs will be banished from their 
workplace by November 22—unless this Court intervenes.8 The message is clear: get 
vaccinated or go find work in a different state with a different license. Yet Americans 
are not supposed to have their liberty “in appropriate places abridged on the plea that 
it may be exercised in some other place.” Schad v. Borough of Mount Ephraim, 452 
U.S. 61, 76-77 (1981) (quoting Schneider v. State, 308 U.S. 147, 163 (1938)).  
If any employers dare to violate New York’s mandate by providing religious 
exemptions, the Department of Health is “conduct[ing] surveillance  * * *  to monitor 
compliance”, App.118, and can impose “civil penalties” and “order the facility to 
comply with the mandate under Section 16 of the Public Health Law.”9 That 
 
8  Rob Frehse, New York State Health Care Workers Will No Longer Have Religious 
Exemption to COVID-19 Vaccine Mandate, Court Rules, CNN (Oct. 29, 2021, 10:29 
PM), https://perma.cc/DJ5N-P7SV. 
9  Amanda Hull, How Enforceable is the Healthcare Vaccine Mandate in New York?, 
CNY Central (Sept. 29, 2021) https://perma.cc/JH62-FZQA. 

15 
enforcement mechanism triggers fines of $2,000, increasing to $5,000 and $10,000 for 
repeat violations—and these fines can be reimposed daily as New York’s masking and 
testing requirements have shown.10 
The Second Circuit’s latest opinion—issued on Friday after the application was 
filed in this Court—confirms that most Title VII accommodations have been 
outlawed. Addendum 2-6. After the Second Circuit struck down Judge Hurd’s 
preliminary injunction, App.4-50, 61-88, Judge Hurd issued a clarifying order that 
emphasized New York’s obligation to provide reasonable accommodations under 
federal law. App.89. Yet in a supplemental opinion on November 12, the Second 
Circuit called his order “erroneous[]” because it implied that “employers may grant 
religious accommodations that allow employees to continue working” as “personnel,” 
that is, interacting with patients and coworkers. Addendum 4-5. The panel asserted 
that, on the contrary, the panel asserted that the only “reasonable accommodation” 
that Section 2.61 allows is to “remove[] the individual from the scope of the Rule,” by 
removing them from the workplace altogether. Addendum 4 (emphasis in original). 
As long as an employee qualifies as “personnel,” “her employer must ‘continuously 
require’ that she is vaccinated against COVID-19.” Addendum 5 (citing Section 2.61). 
Thus, not only has New York abandoned the protections that Title VII guarantees to 
religious employees, but the panel gave this approach its stamp of approval twice—
 
10  2 N.Y.C.R.R. § 12; see also Section 2.60 and Section 2.62 (imposing penalties for 
violating mask and testing mandates; “each day that an entity operates in a manner 
inconsistent with the Section shall constitute a separate violation under this 
Section”). 

16 
and has now directed that “any further proceedings” remain under its control. 
Addendum 6.  
III. Emergency relief is warranted. 
New York’s response and its actions since the application was filed serve only as 
further demonstrations of the need for emergency relief. New York has failed to 
justify Section 2.61 under the Free Exercise Clause or Title VII. Instead of 
ameliorating its draconian policy, it has made it worse by issuing a directive on 
Monday to employers to eliminate all “previously granted religious exemptions” and 
setting a deadline of November 22 for employers to comply by firing or removing 
religious objectors. 
New York argues that the Applicants will suffer no burden because they have not 
shown that Section 2.61 “directly compels them to act in violation of their religious 
beliefs.” Opp.40. But on its face, Section 2.61 requires the Applicants to violate their 
sincere religious belief or face penalties that will cost them the loss of their jobs, 
careers, and livelihoods, including unemployment benefits. Such a choice constitutes 
irreparable harm. See supra Section II (Title VII); Holt, 574 U.S. at 361 (facing 
“serious disciplinary action” for “contraven[ing]” prison’s policy was a substantial 
burden on free exercise); Diocese of Brooklyn, 141 S. Ct. at 67 (“The loss of First 
Amendment freedoms, for even minimal periods of time, unquestionably constitutes 
irreparable injury.”).  
New York offers no response to the argument that Applicants may be barred from 
recovering damages from any harm they do incur because of Section 2.61. Application 
at 32 n.31. That harm has already begun. See Application at 34. Some employers who 

17 
have threatened to terminate religious objectors’ employment will have to move up 
their firing date because of New York’s late-breaking announcement, including the 
employer that sent an Applicant this notice: 
 
 
Two other Applicants have been notified in the last twenty-four hours: 
 
and: 
 
All this is of a piece with New York’s other moves to intimidate religious objectors 
during this lawsuit, including its September 25 announcement that religious 
objectors are not eligible for unemployment benefits. These ongoing efforts to change 

18 
the regulatory facts are far worse than New York’s previous last-minute maneuvers 
in the Diocese of Brooklyn/Agudath Israel litigation. See Opp. at 19, Agudath Israel 
of Am. v. Cuomo, No. 20A90 (Nov. 25, 2020) (citing recent changes to various color 
“clusters”). There at least New York claimed to be reducing the burden on the 
Applicants—a claim this Court rejected as too little, too late. See Diocese of Brooklyn, 
141 S. Ct. at 68 (Governor’s frequent reclassifications without notice created 
“constant threat” necessitating injunctive relief). Here, New York is making the 
burden both worse and irreversible as to a large class of religious objectors who will—
by Thanksgiving—find themselves out of a job and without the unemployment 
protection almost every other New Yorker enjoys, exacerbating any feared staffing 
shortages. Opp.41. Emergency relief is thus needed. 
New York’s actions also warrant a grant of certiorari on the merits. This is not a 
“merits preview,” Opp.21, it is an opportunity for this Court to resolve a matter of 
nationwide scope with full briefing and argument. Consideration on the merits would 
provide much-needed guidance on matters pending around the country. See, e.g., 
Sambrano v. United Airlines, Inc., No. 21-1074 (N.D. Tex. filed Sept. 21, 2021). Three 
other circuits have already resolved vaccine mandate cases with differing approaches. 
Dahl v. Board of Trustees of W. Mich. Univ., 15 F.4th 728 (6th Cir. 2021); Does v. 
Mills, 16 F.4th 20 (1st Cir. 2021); Klaassen v. Trustees of Ind. Univ., 7 F.4th 592 (7th 
Cir. 2021), application denied, No. 21A15 (Aug. 12, 2021) (upholding mandate that 
allowed for religious exemptions). 

19 
New York’s claim that the record is “sparse” is not a vehicle problem with the 
Applicants’ case but goes to the State’s burden of proof on strict scrutiny. Opp.20-21. 
The Applicants’ case—and the cert-worthiness of this vehicle—depends not on 
evidence of specific back-and-forth conversations with their employers, but on New 
York’s global rule that exempts medical objectors and requires religious objectors to 
be banished from the premises or fired regardless of what accommodations their 
employers may be willing to make. Applicants presented sworn testimony confirming 
the impact of New York’s ban on religious exemptions, and it is New York’s burden to 
provide evidence that the ban is constitutionally permissible. It has not done so, and 
it has ignored the dire consequences of its actions since the Second Circuit’s order. 
See Application at 34; supra Section II.  
CONCLUSION 
 
The application should be granted. 
 
 

20 
Respectfully submitted. 
/s/ Thomas Brejcha 
MARK RIENZI 
DANIEL BLOMBERG  
DIANA VERM THOMSON 
ADÈLE KEIM 
KAYLA A. TONEY 
JAMES J. KIM 
THE BECKET FUND FOR  
   RELIGIOUS LIBERTY 
1919 Pennsylvania Ave. NW,  
   Suite 400 
Washington, D.C. 20006  
 
 
 
 
(202) 955-0095 
mrienzi@becketlaw.org 
 
   Counsel of Record 
STEPHEN M. CRAMPTON 
THOMAS MORE SOCIETY 
309 West Washington St., Suite 1250 
Chicago, IL 60606 
tbrejcha@thomasmoresociety.org 
CHRISTOPHER A. FERRARA 
THOMAS MORE SOCIETY 
148-29 Cross Island Parkway 
Whitestone, Queens NY 11357 
(718) 357-1040 
MICHAEL MCHALE 
THOMAS MORE SOCIETY 
10506 Burt Circle, Suite 110 
Omaha, NE 68114 
 
NOVEMBER 2021 
 
 

No. 21A125 
In the Supreme Court of the United States 
DR. A., ET AL., 
Applicants, 
v. 
KATHY HOCHUL, GOVERNOR OF THE STATE OF NEW YORK, ET AL., 
Respondents. 
ADDENDUM TO REPLY BRIEF 
MARK RIENZI 
DANIEL BLOMBERG  
DIANA VERM THOMSON 
ADÈLE KEIM 
KAYLA A. TONEY 
JAMES J. KIM 
THE BECKET FUND FOR RELIGIOUS 
LIBERTY 
1919 Pennsylvania Ave. NW, Suite 400 
Washington, D.C. 20006  
(202) 955-0095
mrienzi@becketlaw.org
THOMAS BREJCHA 
   Counsel of Record 
STEPHEN M. CRAMPTON 
THOMAS MORE SOCIETY 
309 West Washington Street, Suite 1250 
Chicago, IL 60606 
tbrejcha@thomasmoresociety.org 
CHRISTOPHER A. FERRARA 
THOMAS MORE SOCIETY 
148-29 Cross Island Parkway
Whitestone, Queens NY 11357
(718) 357-1040
MICHAEL MCHALE 
THOMAS MORE SOCIETY 
10506 Burt Circle, Suite 110 
Omaha, NE 68114 
Counsel for Applicants 

TABLE OF CONTENTS 
Exhibit 1, Add.1 ....................................... November 12, 2021: Second Circuit Opinion 
Exhibit 2, Add.8 .............. November 15, 2021: Letter from N.Y. State Dep’t of Health 

EXHIBIT 1 
Add.1

21-2179; 21-2566
We The Patriots USA, Inc. v. Hochul; Dr. A. v. Hochul
In the 
United States Court of Appeals 
For the Second Circuit 
______________  
August Term, 2021 
(Argued:  October 27, 2021   
Decided:  November 12, 2021) 
Docket No. 21-2179 
______________  
WE THE PATRIOTS USA, INC., DIANE BONO, MICHELLE MELENDEZ,
MICHELLE SYNAKOWSKI, 
Plaintiffs-Appellants, 
–v.–
KATHLEEN HOCHUL, HOWARD A. ZUCKER, M.D., 
Defendants-Appellees. 
___________________________  
Docket No. 21-2566 
______________  
DR. A., NURSE A., DR. C., NURSE D., DR. F., DR. G., THERAPIST I.,  
DR. J., NURSE J., DR. M., NURSE N., DR. O., DR. P., TECHNOLOGIST P., DR. S.,
NURSE S., PHYSICIAN LIAISON X., 
Plaintiffs-Appellees, 
–v.–
KATHY HOCHUL, GOVERNOR OF THE STATE OF NEW YORK, IN HER OFFICIAL
CAPACITY, DR. HOWARD A. ZUCKER, COMMISSIONER OF THE NEW YORK STATE
CERTIFIED COPY ISSUED ON 11/12/2021
Case 21-2566, Document 79, 11/12/2021, 3210374, Page1 of 5
Add.2

2 
DEPARTMENT OF HEALTH, IN HIS OFFICIAL CAPACITY, LETITIA JAMES,
ATTORNEY GENERAL OF THE STATE OF NEW YORK, IN HER OFFICIAL CAPACITY, 
Defendants-Appellants. 
B  e  f  o  r  e :
WALKER, SACK, and CARNEY, Circuit Judges. 
______________ 
CAMERON L. ATKINSON (Norman A. Pattis, Earl A. Voss, on 
the brief), Pattis & Smith, LLC, New Haven, CT, for 
Plaintiffs-Appellants We The Patriots USA, Inc. et al. (in 
No. 21-2179). 
STEVEN C. WU, Deputy Solicitor General (Barbara D. 
Underwood, Mark S. Grube, on the brief) for Letitia 
James, Attorney General for the State of New York, 
New York, NY, for Defendants-Appellants (in No. 21-
2566) and Defendants-Appellees (in No. 21-2179) Kathleen 
Hochul et al.   
CHRISTOPHER A. FERRARA (Michael McHale, Stephen M. 
Crampton, on the brief), Thomas More Society, 
Chicago, IL, for Plaintiffs-Appellees Dr. A. et al. (in No. 
21-2566).
Alex J. Luchenister, Richard B. Katskee, Americans United 
for Separation of Church and State, Washington, D.C.; 
Daniel Mach, Heather L. Weaver, Lindsey Kaley, 
American Civil Liberties Union Foundation, 
Washington, D.C. & New York, NY; Christopher 
Dunn, Beth Haroules, Arthur Eisenberg, Amy Belsher, 
New York Civil Liberties Union Foundation, New 
York, NY, for Amici Curiae (in No. 21-2179) Americans 
United for Separation of Church and State, American Civil 
Liberties Union, New York Civil Liberties Union, Central 
Conference of American Rabbis, Global Justice Institute, 
Case 21-2566, Document 79, 11/12/2021, 3210374, Page2 of 5
Add.3

3 
Metropolitan Community Churches, Men of Reform 
Judaism, Methodist Federation for Social Action, Muslim 
Advocates, National Council of Jewish Women, 
Reconstructionist Rabbinical Association, Union for 
Reform Judaism, and Women of Reform Judaism. 
Mark D. Harris, Shiloh Rainwater, Proskauer Rose LLP, New 
York, NY, for Amicus Curiae (in No. 21-2179) Greater 
New York Hospital Association.  
______________ 
PER CURIAM:
We write to clarify our opinion in We The Patriots USA, Inc. v. Hochul, No. 21-
2179, and Dr. A. v. Hochul, No. 21-2566, which we heard and decided in tandem. 2021 
WL 5121983 (2d Cir. Nov. 4, 2021). We do so in light of the text of the recent order of the 
district court in Dr. A. v. Hochul, vacating the preliminary injunction at issue. No. 1:21-
CV-1009 (N.D.N.Y. Nov. 5, 2021). The district court there wrote that the Dr. A. Plaintiffs
“no longer need” a preliminary injunction because Section 2.61 “does not prevent 
employees from seeking a religious accommodation allowing them to continue working 
consistent with the Rule, while avoiding the vaccination requirement.” Id. (quoting We 
the Patriots USA, Inc., 2021 WL 5121983, at *17).  
A reader might erroneously conclude from this text that, consistent with our 
opinion, employers may grant religious accommodations that allow employees to 
continue working, unvaccinated, at positions in which they “engage in activities such 
that if they were infected with COVID-19, they could potentially expose other covered 
personnel, patients or residents to the disease.” 10 N.Y.C.R.R. § 2.61 (definition of 
“personnel”). In our opinion, however, we stated that “Section 2.61, on its face, does not 
bar an employer from providing an employee with a reasonable accommodation that 
removes the individual from the scope of the Rule.” 2021 WL 5121983, at *17 (emphasis 
added). In other words, it may be possible under the Rule for an employer to 
Case 21-2566, Document 79, 11/12/2021, 3210374, Page3 of 5
Add.4

4 
Case 21-2566, Document 79, 11/12/2021, 3210374, Page4 of 5
accommodate—not exempt—employees with religious objections, by employing them in a 
manner that removes them from the Rule’s definition of “personnel.” Id. Such an 
accommodation would have the effect under the Rule of permitting such employees to 
remain unvaccinated while employed.  
Of course, Title VII does not obligate an employer to grant an accommodation 
that would cause “undue hardship on the conduct of the employer’s business.” See 42 
U.S.C. § 2000e(j). And, as we also observed in our opinion, “Contrary to the Dr. A. 
Plaintiffs’ interpretation of the statute, Title VII does not require covered entities to 
provide the accommodation that Plaintiffs prefer—in this case, a blanket religious 
exemption allowing them to continue working at their current positions unvaccinated.” 
2021 WL 5121983, at *17. To repeat: if a medically eligible employee’s work assignments 
mean that she qualifies as “personnel,” she is covered by the Rule and her employer 
must “continuously require” that she is vaccinated against COVID-19. 10 N.Y.C.R.R. 
§ 2.61. As we observed, this requirement runs closely parallel to the longstanding New 
York State requirements, subject to no religious exemption, that medically eligible 
healthcare employees be vaccinated against rubella and measles. 2021 WL 5121983, at 
*13.
The preliminary injunction entered by the district court in Dr. A. v. Hochul on 
October 12, 2021, has been vacated. See We The Patriots USA, Inc. v. Hochul, No. 21-2179, 
and Dr. A. v. Hochul, No. 21-2566, 2021 WL 5103443, at *1 (2d Cir. Oct. 29, 2021). New 
York State’s emergency rule requiring that healthcare facilities “continuously require” 
that certain medically eligible employees—those covered by the Rule’s definition of 
“personnel”—are vaccinated against COVID-19, is currently in effect. 10 N.Y.C.R.R. 
§ 2.61. We caution further that our opinion addressed only the likelihood of success on 
the merits of Plaintiffs’ claims; it did not provide our court’s definitive determination of 
the merits of those claims.  
Add.5

5 
In the interest of judicial economy, we direct the Clerk of Court to refer any 
further proceedings in these two matters to this panel. 
Case 21-2566, Document 79, 11/12/2021, 3210374, Page5 of 5
Add.6

EXHIBIT 2 
Add.7

November 15, 2021 
DHDTC 21-11 
NH 21-25 
DHCBS 21-13 
DAL 21-32 
Dear Chief Executive Officers, Nursing Home Operators and Administrators, Adult Care 
Facility Administrators, and Home Care and Hospice Administrators: 
The purpose of this letter is to inform covered entities that beginning November 22, 
2021, all covered entities must ensure that covered “personnel” under the Department’s August 
26, 2021 – Prevention of COVID-19 Transmission by Covered Entities Emergency Regulation 
who were previously granted religious exemptions have documentation of either a first dose 
COVID-19 vaccination or a valid medical exemption.  Facilities should have a process in place 
to consider reasonable accommodation requests from covered personnel based on sincerely 
held religious beliefs consistent with applicable Federal and State laws, including Equal 
Employment Opportunity (EEO) laws such as Title VII of the Civil Rights Act and NYS Human 
Rights Law, and their applicable guidance. 
https://coronavirus.health.ny.gov/system/files/documents/2021/11/faqs-for-10-nycrr-section-
2.61-11-08-21.pdf  
Questions or concerns concerning this DAL can be addressed to 
hospinfo@health.ny.gov, covidnursinghomeinfo@health.ny.gov, 
covidadultcareinfo@health.ny.gov, or covidhomecareinfo@health.ny.gov.based on the specific 
covered entity. 
Sincerely, 
Jennifer L. Treacy 
Deputy Director 
Office of Primary Care and Health Systems 
Management  
Add.8

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