Kane v. De Blasio

19 F.4th 152

Michael KANE, William Castro, Margaret Chu, Heather Clark, Stephanie Di Capua, Robert Gladding, Nwakaego Nwaifejokwu, Ingrid Romero, Trinidad Smith, Amaryllis Ruiz-Toro, Plaintiffs-Appellants,

v.Bill DE BLASIO, in his official capacity as Mayor of the City of New York, David Chokshi, in his official capacity of Health Commissioner of the City of New York, New York City Department of Education, Defendants-Appellees.

Matthew Keil, John De Luca, Sasha Delgado, Dennis Strk, Sarah Buzaglo, Plaintiffs-Appellants,

v.The City of New York, Board of Education of the City School District of New York, David Chokshi, in his official capacity of Health Commissioner of the City of New York, Meisha Porter, in her official capacity as Chancellor of the New York City Department of Education, Defendants-Appellees.

No. 21-2678

August Term 2021

No. 21-2711

United States Court of Appeals, Second Circuit.

Argued: November 22, 2021

Decided: November 28, 2021

For Plaintiffs-Appellants: In No. 21-2678: Sujata Sidhu Gibson, The Gibson Law Firm, Ithaca, NY; In No. 21-2711: Barry Black, Sarah Elizabeth Child, and Jonathan R. Nelson, Nelson Madden Black LLP, New York, NY.

For Defendants-Appellees: Susan Paulson, Assistant Corporation Counsel, Richard Paul Dearing, Assistant Corporation Counsel, and Devin Slack, New York City Law Department, New York, NY.

Before: Livingston, Chief Judge, Kearse, and Lee, Circuit Judges.

Per Curiam:

These two cases on appeal, which we heard in tandem, concern the denial of preliminary injunctive relief in connection with an order issued by the New York City Commissioner of Health and Mental Hygiene (the "Commissioner"), mandating that individuals who work in New York City schools be vaccinated against the COVID-19 virus (the "Vaccine Mandate" or "Mandate"). Plaintiffs-Appellants ("Plaintiffs") are fifteen teachers and school administrators who object to receiving the COVID-19 vaccine on religious grounds. Plaintiffs sought, but were denied, religious accommodations. They have sued the City of New York (the "City"), certain officials, and the New York City Department of Education (collectively, the "Defendants"), challenging both the Vaccine Mandate on its face and the process by which their requests for religious accommodations were denied. The United States District Court for the Southern District of New York (Caproni, J. ) denied motions for preliminary injunctions in both cases, but a motions panel of this Court, with the consent of the City, thereafter granted Plaintiffs substantial provisional relief pending appeal.

For the reasons set forth herein, we conclude that the Vaccine Mandate does not violate the First Amendment on its face, and we thus agree with the district court to this extent. We nevertheless vacate the district court's orders of October 12 and 28, 2021, denying preliminary relief, and we concur with and continue the interim relief granted by the motions panel as to these fifteen individuals. For the present, Plaintiffs have established their entitlement to preliminary relief on the narrow ground that the procedures employed to assess their religious accommodation claims were likely constitutionally infirm as applied to them. We remand for further proceedings consistent with this opinion.

BACKGROUND

I. Factual Background

On August 24, 2021, the Commissioner issued an order requiring generally that Department of Education ("DOE") and/or City employees or contractors who work in DOE schools or DOE buildings be vaccinated against the COVID-19 virus. The Vaccine Mandate provides, in pertinent part, as follows:

1. No later than September 27, 2021 or prior to beginning employment, all DOE staff must provide proof to the DOE that:

a. they have been fully vaccinated; or

b. they have received a single dose vaccine, even if two weeks have not passed since they received the vaccine; or

c. they have received the first dose of a two-dose vaccine, and they must additionally provide proof that they have received the second dose of that vaccine within 45 days after receipt of the first dose.^[1]

...

5. For the purposes of this Order:

a. "DOE staff" means (i) full or part-time employees of the DOE, and (ii) DOE interns (including student teachers) and volunteers.

b. "Fully vaccinated" means at least two weeks have passed after a person received a single dose of a one-dose series, or the second dose of a two-dose series, of a COVID-19 vaccine approved or authorized for use by the Food and Drug Administration or World Health Organization.

c. "DOE school setting" includes any indoor location, including but not limited to DOE buildings, where instruction is provided to DOE students in public school kindergarten through grade 12, including residences of pupils receiving home instruction and places where care for children is provided through DOE's [Living for the Young Family Through Education] program.

d. "Staff of contractors of DOE and the City" means a full or part-time employee, intern or volunteer of a contractor of DOE or another City agency who works in-person in a DOE school setting or other DOE building, and includes individuals working as independent contractors.

e. "Works in-person" means an individual spends any portion of their work time physically present in a DOE school setting or other DOE building. It does not include individuals who enter a DOE school setting or other DOE location only to deliver or pickup items, unless the individual is otherwise subject to this Order. It also does not include individuals present in DOE school settings or DOE buildings to make repairs at times when students are not present in the building, unless the individual is otherwise subject to this Order.

Joint App'x 177–79.² DOE serves approximately one million students across the City, and the order was consistent with guidance from the U.S. Centers for Disease Control ("CDC") that school teachers and staff should be vaccinated as soon as possible so as to permit schools to resume normal operations safely.

On September 1, 2021, the United Federation of Teachers ("UFT") filed a formal objection to the Vaccine Mandate on the ground that it fails to provide any medical or religious accommodations. After failing to resolve their dispute through mediation, the UFT and the City moved to arbitration. On September 10, an independent arbitrator (the "Arbitrator") issued an award (the "Arbitration Award") setting forth a process and standards ("Accommodation Standards") for determining, as relevant to this appeal, religious accommodations to the Vaccine Mandate.³

The Accommodation Standards allowed employees to request a religious accommodation by submitting a request that is "documented in writing by a religious official (e.g., clergy)." Joint App'x 197. Requests "shall be denied where the leader of the religious organization has spoken publicly in favor of the vaccine, where the documentation is readily available (e.g., from an online source), or where the objection is personal, political, or philosophical in nature." Id.⁴ The Accommodation Standards further provide that requests "shall be considered for recognized and established religious organizations (e.g., Christian Scientists)." Id.

The Arbitration Award establishes a two-step process for resolving a request for a religious accommodation. First, the DOE renders an "initial determination of eligibility for an exemption or accommodation."⁵ Joint App'x 197; Defendants Br. 7. Then, if the employee's request is denied, the employee can appeal the DOE's determination to a panel of arbitrators selected by the Arbitrator. The Arbitration Award states that its procedures are to operate "[a]s an alternative to any statutory reasonable accommodation process."⁶ Joint App'x 194–95. Employees who are granted an accommodation

shall be permitted the opportunity to remain on payroll, but in no event required/permitted to enter a school building while unvaccinated, as long as the vaccine mandate is in effect. Such employees may be assigned to work outside of a school building (e.g., at DOE administrative offices) to perform academic or administrative functions as determined by the DOE while the exemption and/or accommodation is in place.

Id. at 200.

In addition to setting forth a process for granting religious accommodations, the Arbitration Award scheduled a series of deadlines for employees to comply with the Vaccine Mandate. First, it provided that as to any unvaccinated employee denied an accommodation, the DOE could place the employee on "leave without pay effective September 28, 2021, or upon denial of appeal, whichever [was] later, through November 30, 2021." Joint App'x 201. "During such leave without pay," employees "shall continue to be eligible for health insurance" but "are prohibited from engaging in gainful employment." Id. at 202.

From September 28 through October 29, any employee who was on leave without pay "due to vaccination status" could opt to separate from the DOE. Id. at 204. Employees who elected to separate were eligible for certain benefits but were required to file "a waiver of [their] rights to challenge [their] involuntary resignation, including, but not limited to, through a contractual or statutory disciplinary process." Id. Then, from November 1 through November 30, any employee on leave without pay due to vaccination status could "alternately opt to extend the leave through September 5, 2022," during which time they would remain eligible for health insurance. Id. at 205. To extend their leave, however, the employees were required to execute "a waiver of [their] rights to challenge [their] voluntary resignation, including, but not limited to, through a contractual or statutory disciplinary process." Id. "Employees who have not returned by September 5, 2022, shall be deemed to have voluntarily resigned." Id. "Beginning December 1, 2021, the DOE shall seek to unilaterally separate employees who have not opted into separation ...." Id.

On September 15, the Vaccine...