Supreme Court, Kings County, September 25, 2023

Ransford B. McKenzie, Brooklyn, for petitioner.

Sylvia O. Hinds-Radix, Corporation Counsel, New York City (Sonya Gidumal Chazin of counsel), for respondent.

In this CPLR article 78 proceeding, petitioner Nathalee Hollinshead (petitioner), a former managerial employee of respondent{**81 Misc 3d at 764} New York City Health and Hospitals Corporation, doing business as NYC Health + Hospitals (respondent or HHS), seeks an order rescinding: (1) respondent's decision to terminate her employment, effective November 29, 2021; (2) respondent's allegedly arbitrary and capricious decision not to extend religious exemption and reasonable accommodation previously granted to her; and (3) respondent's denial, as a general matter, of religious exemption to employees who hold sincere religious concerns on the issue of the COVID-19 vaccine mandates. By decision and order, dated April 10, 2023, the court granted respondent's pre-answer motion to dismiss (in seq No. 2) solely to the extent of dismissing corespondent New York City Department of Health and Mental Hygiene (the City DOH) from this proceeding, and otherwise denied respondent's motion (the prior order) (2023 NY Slip Op 34596[U] [Sup Ct, Kings County 2023]; NY St Cts Elec Filing [NYSCEF] Doc No. 19). Thereafter, respondent answered the petition (NYSCEF Doc No. 24). On August 10, 2023, the court heard oral argument, reserving decision on the merits of the petition (in seq No. 1). The remaining portion of litigation—respondent's motion (in seq No. 3) for extension of time to answer the petition—has not been objected to, and has been mooted out, by the filing of its answer.[*2]

Respondent employed petitioner, a New York State-licensed clinical social worker, as the "Director of Complex Care (Functional)" in its Brooklyn-based, Community Care division from March 2, 2020, to November 29, 2021 (NYSCEF Doc No. 24, verified answer ¶ 1). Her duties, as a managerial employee, included oversight of all care-coordination activities specific to service delivery to certain special populations, such as the "Health and Recovery Plans" for adults with significant behavioral problems, and the "Assisted Outpatient Treatment" programs for the individuals who were referred for mental health treatment (NYSCEF Doc No. 6, description of petitioner's job title).

On August 18, 2021, the New York State Commissioner of Health issued an "Order for Summary Action" (the State DOH Commissioner's order) under the authority vested in him/her by Public Health Law § 16, which permits the State DOH Commissioner to issue a short-term order—effective for a maximum of 15 days—if he/she identifies a condition that in his/her view constitutes a "danger to the health of the people." After making {**81 Misc 3d at 765}findings about the dangers of COVID-19, the State DOH Commissioner's order required certain healthcare facilities to ensure that their personnel were fully vaccinated against COVID-19 by September 27, 2021 (part of NYSCEF Doc No. 25). The State DOH Commissioner's order included (in section [c] [2] thereof) a religious exemption for personnel who held "a genuine and sincere religious belief contrary to the practice of immunization, subject to a reasonable accommodation by the employer."

On August 26, 2021, or eight days after the State DOH Commissioner's order was issued, the New York State Department of Health (the State DOH) adopted an emergency rule directing hospitals and other healthcare entities to "continuously require" certain of their employees to be fully vaccinated against COVID-19 beginning on (as relevant here) October 7, 2021 (10 NYCRR 2.61) (the State mandate or section 2.61) (part of NYSCEF Doc No. 25). Unlike the State DOH Commissioner's order, the State mandate omitted (and still omits) a religious exemption.^[FN1] As an emergency regulation, the State mandate was in effect for a maximum of 90 days, which initially expired on November 23, 2021, but has been subsequently renewed. Indeed, the State mandate has remained in effect to date, although the State DOH no longer prospectively enforces it starting May 24, 2023 (as more fully described below).

Pursuant to section 2.61, petitioner, as a "Community Care" employee, was required to receive her first COVID-19 vaccination before October 7, 2021 (NYSCEF Doc No. 30, New York State Vaccine Mandate for Health Care Workers, Frequently Asked Questions).

By paper application, dated September 3, 2021, and by email resubmission, dated September 24, 2021, petitioner requested respondent's Office of Equal Employment Opportunity (EEO) to grant a religious exemption from the State mandate (NYSCEF Doc Nos. 26-27). As the basis for the religious exemption, she has asserted (and respondent has not challenged) that she is a born-again Christian with a sincerely held religious opposition to the COVID-19 vaccine (NYSCEF Doc No. 26, petitioner's Sept. 3, 2021 letter).{**81 Misc 3d at 766}[*3]

By email to petitioner, dated September 29, 2021, the EEO responded that

"[a]fter a review of [her] job duties[,] th[e] [EEO] has determined that there are no reasonable accommodations available which would permit [petitioner] to perform [her] essential job functions.

"As such, [the EEO] has approved a leave of absence without pay for a period of sixty (60) days, from September 27, 2021 through November 26, 2021. Prior to the expiration of this approved leave of absence[,] th[e] [EEO] will review [petitioner's] request to determine whether additional leave can be granted or if the Operational needs of [petitioner's] department have changed[,] such that the grant of additional leave poses an undue burden on the [HHS] System" (NYSCEF Doc No. 28).

By a subsequent email to petitioner, dated November 16, 2021, the EEO advised her that

"[t]h[e] [EEO] has reviewed [her] request to determine whether additional leave beyond November 26, 2021 could be granted or if the grant of additional leave would pose an undue burden on the [HHS] System. Following that review[,] it has been determined that no additional leave can be granted. [Petitioner] will receive further information from Human Resources about an option that would allow [her] to voluntarily resign from the [HHS] System on or before December 31, 2021. If [she] choose[s] to elect this option[,] [she] must do so before the expiration of [her] leave on November 26, 2021. However, should [she] choose not to elect that Voluntary Resignation option, [she] will be separated from employment on or after [Saturday,] November 27, 2021" (NYSCEF Doc No. 29).

Thereafter, by letter, dated November 29, 2021, respondent's human-resources department notified petitioner that "[a]ccording to [the HHS] records, [she] remain[ed] non-compliant with the COVID-19 vaccination requirement. [Petitioner is] therefore no longer an employee of [respondent] effective [Monday,] November 29, 2021" (NYSCEF Doc No. 15).

On March 28, 2022, petitioner timely commenced this CPLR article 78 proceeding. As noted, respondent has answered the petition, thus making the matter ripe for determination on the merits. The well-established standard of review has been omitted{**81 Misc 3d at 767} in this decision and judgment in the interest of brevity. Additional facts are noted when relevant to the discussion below.

As a threshold matter, it must be clarified that the State mandate (rather than the City regulation) is at stake here because respondent, as a public benefit corporation, is independent of the City of New York, and (with certain exceptions not applicable here) is not an agency of the City (see Brennan v City of New York, 59 NY2d 791, 792 [1983]). This clarification is necessary because the petition (in paragraph 19 thereof) incorrectly relies on the order, dated October 20, 2021, of the City DOH requiring employees of all City agencies to show proof of[*4] vaccination.^[FN2]

It bears noting that the vaccine mandate of section 2.61 remains in effect to date, although the State DOH has not been enforcing it prospectively. By "Dear Administrator" letter, dated May 24, 2023, the State DOH advised that

"[a]t this time, the New York State regulatory requirement 10 NYCRR Section 2.61 (Prevention of COVID-19 Transmission by Covered Entities - 10 NYCRR Section 2.61) that personnel in covered entities be fully vaccinated against COVID-19 is being recommended for repeal by the [State DOH] . . . [,] subject to consideration by the Public Health and Health Planning Council ('PHHPC'). Effective immediately, the [State DOH] will cease citing providers for failing to comply with the requirements of Section 2.61 while the repeal is under consideration by PHHPC. The [State DOH] may, however, continue to seek sanctions against providers based on previously cited violations that{**81 Misc 3d at 768} allegedly occurred" (emphasis added).^[FN3]

The State mandate in section 2.61 has been subject to material litigation in two recent cases before the New York state courts. First, on January 13, 2023, the Onondaga County Supreme Court granted the request from an organization of medical professionals to enjoin the State mandate, holding that its promulgation was an ultra vires act of the State DOH (see Medical Professionals for Informed Consent v Bassett, 78 Misc 3d 482 [Sup Ct, Onondaga County 2023]). The Medical Professionals court held that the State mandate exceeded the State DOH's rulemaking authority under the Public Health Law, violated the separation of powers doctrine, and was arbitrary/capricious. The ruling was appealed, and on February 27, 2023, the Fourth Judicial Department stayed the enforcement of the underlying decision/order during the pendency of the appeal (see Medical Professionals for Informed Consent v Bassett, 2023 NY Slip Op 62807[U] [4th Dept 2023]). Oral argument before the Fourth Judicial Department was held on May 24, 2023,^[FN4] but, to date, no decision has been issued.

Second, on August 17, 2023, the Erie County Supreme Court, by a memorandum decision of that date, similarly invalidated the State mandate of section 2.61 (see Cooper v Roswell Park Comprehensive Cancer Ctr., 81 Misc 3d 324 [Sup Ct, Erie County 2023]). To date, however, no order implementing the Cooper memorandum decision has been entered (see NYSCEF Doc No. 29, "Order [Proposed]" in Cooper v Roswell Park Comprehensive Cancer Ctr., Sup Ct, Erie [*5]County, index No. 805274/2023 [last checked Sept. 21, 2023]).^[FN5]

Separately from the foregoing, the State mandate of section 2.61 has been subject to significant litigation in federal courts. At the time of petitioner's request for religious exemption in September 2021, a federal district court in the Northern{**81 Misc 3d at 769} District of New York had temporarily enjoined the State DOH from "enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination" (Dr. A v Hochul, 2021 WL 4189533, *1, 2021 US Dist LEXIS 177761, *3 [ND NY, Sept. 14, 2021, No. 1:21-CV-1009]). However, the district court's temporary injunction was promptly (i.e., within approximately six weeks) vacated on appeal (see We the Patriots USA, Inc. v Hochul, 2021 WL 5103443, 2021 US App LEXIS 32921 [2d Cir, Oct. 29, 2021, No. 21-2179], op issued 17 F4th 266, 274 [2d Cir, Nov. 4, 2021], clarified 17 F4th 368 [2d Cir, Nov. 12, 2021], cert denied 595 US —, 142 S Ct 2569 [2022]).^[FN6]

In addition, a long line of cases in the Southern, Eastern, and Northern Districts of New York have each considered the application of the State mandate of section 2.61 to the individuals whose religious beliefs were in conflict with receiving a COVID-19 vaccine. Those decisions dismissed the religious-discrimination, failure-to-accommodate, and substantive due process claims, as predicated on the termination of employment following the affected employees' refusal to comply with the State mandate, with the courts explaining that "regardless of the current status of section 2.61, the regulation was in effect at the time of [the plaintiff's] request for a religious exemption, and it therefore would have been an undue hardship for [the defendant] to comply with his request" (Wilson v New York Socy. for Relief of Ruptured & Crippled, Maintaining Hosp. for Special Surgery, 2023 WL 5766030, *5, 2023 US Dist LEXIS 158583, *9-12 [SD NY, Sept. 7, 2023, No. 22-CV-9207 (AT) (JLC)]; see also Mace v Crouse Health Hosp., Inc., 2023 WL 5049465, *8, 2023 US Dist LEXIS 137479, *25 [ND NY, Aug. 8, 2023, No. 5:22-cv-1153 (TJM/ATB)] [Medical Professionals (and{**81 Misc 3d at 770} its progeny, Cooper) have "no bearing on whether Defendant violated Plaintiff's rights by following the (state) law (i.e., section 2.61) as it then existed"]; Algarin v NYC Health + Hosps. Corp., 2023 WL 4157164, *4, 2023 US Dist LEXIS 108666, *24-25 [SD NY, June 23, 2023, No. 1:22-cv-8340 (JLR)] ["Plaintiff's reliance on (Medical Professionals), a New York Supreme Court decision that found that the (State) DOH exceeded its authority in promulgating Section 2.61, is misplaced. . . . (T)hat decision was not issued until January 13, 2023 and therefore (the defendant) was obliged to follow Section 2.61 at the time that employment actions were taken with respect to Plaintiff in 2021. . . . (Further,) the May 24, 2023 letter from the (State) DOH stating that, effective immediately, the (State) DOH will not enforce Section 2.61 prospectively while repeal is being contemplated . . . does not change the fact that Section 2.61 was in force and effect in 2021 at the time of the employment actions with respect to Plaintiff"]; Dennison v Bon Secours Charity Health Sys. Med. Group, P.C., 2023 WL 3467143, *6 n 8, 2023 US Dist LEXIS 84888, *16 n 8 [SD NY, May 15, 2023, No. 22-CV-2929 (CS)] ["That the Onondaga County Supreme Court (in Medical Professionals) invalidated the State mandate in 2023 . . . does not change the outcome here. . . . (A) 2023 ruling has no bearing on the actions of Defendants in 2021"]; see further Corrales v Montefiore Med. Ctr., 2023 WL 2711415, *7, 2023 US Dist LEXIS 55620, *17-20 [SD NY, Mar. 30, 2023, No. 22-CV-3219 (LAP)]; Riley v New York City Health & Hosps. Corp., 2023 WL 2118073, *5, 2023 US Dist LEXIS 27562, *10-12 [SD NY, Feb. 17, 2023, No. 22-cv-2736 (JGK)]).^[FN7]

The court has considered petitioner's remaining contentions and found them unavailing. Petitioner's substantive due process claim is groundless (see e.g. Serafin v New York State Dept. of Health, 2021 NY Slip Op 34015[U], *12-14 [Sup Ct, Albany County, Oct. 8, 2021]).{**81 Misc 3d at 771}

Accordingly, it is ordered and adjudged that (in seq No. 1) the verified petition is denied and the proceeding is dismissed without costs and disbursements; and it is further ordered that (in seq No. 3) respondent's motion for extension of time to serve its answer is denied as moot.

  "That a court had temporarily, and then preliminary, enjoined enforcement does not mean employers were free, let alone required, to ignore the State Mandate. Were the rule otherwise, employers would be required to accurately predict the outcome of litigation in order to avoid liability for discrimination on the one hand, or liability for violating state law on the other. Indeed, the wisdom of complying with the State Mandate notwithstanding, the temporary relief was demonstrated by the Second Circuit's prompt vacatur of the injunction" (Dennison v Bon Secours Charity Health Sys. Med. Group, P.C., 2023 WL 3467143, *5 n 5, 2023 US Dist LEXIS 84888, *14 n 5 [SD NY, May 15, 2023, No. 22-CV-2929 (CS)] [citations omitted]; see also Cagle v Weill Cornell Medicine, 2023 WL 4296119, *5, 2023 US Dist LEXIS 113687, *12-16 [SD NY, June 30, 2023, No. 22-cv-6951 (LJL)] [same]).