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If we had forgotten that there continue to be abundant U.S. cases of COVID-19, then there was plenty around us to remind us.  Public mask usage seems to have increased.  We heard how the “tripledemic” of viruses had made hospital beds scarce.  We have had colleagues out of commission instead of completing our assignments.  The CDC data show more than 100,000 new cases in the last two weeks.  As Yogi Berra said, “It ain’t over ‘til it’s over.”  The same could be said of litigation about governmental policies adopted back in 2020 or 2021.  Most of the decisions in the space that we have discussed have involved expedited consideration of preliminary injunctions and the appeals of rulings on preliminary injunctions.  For many of these cases, it was hard to see a justiciable issue after a preliminary injunction was denied.  For instance, if a plaintiff sought to force physicians at a hospital where she was admitted with complications of COVID-19 to prescribe and administer her ivermectin, then there was probably not a live issue a year later.

Spivack v. City of Philadelphia, Civ. No. 22-1438, 2023 WL 36068 (E.D. Pa. Jan. 4, 2023), involves cross-motions for summary judgment months after a preliminary injunction was denied.  It also involved the policies adopted by the District Attorney of Philadelphia applicable to an Assistant District Attorney he appointed in the fall of 2021, when COVID-19 was at least much of a public health concern as now.  Beyond the inherent eye-candy in a lawyer suing a lawyer—the DA was the real defendant here and the city was a bystander—the case was interesting in that it turned on changes in the policy over time and alleged contrast between the treatment of medical exemptions and religious exemptions.  While framed as a First Amendment question, it was fundamentally an employment dispute with plaintiff getting fired for not complying with the vaccination policy of the DA’s office.  (There were state law claims asserted, but they were waived based on not complying with a pre-suit notice requirement.)

The focused facts were as follows.  The DA had sole discretion to set and apply employment policies for non-union employees.  Before plaintiff was hired/appointed, the DA adopted a policy requiring vaccination for COVID-19 subject to medical, disability, and religious exemptions as part of a “strategy to maintaining a safe workplace in light of [the COVID-19] pandemic.”  Id. at *2.  Not long after plaintiff was hired, she applied for a religious exemption, relying on a letter from her rabbi outlining a religious objection to the vaccine.  Id. at *3.  While her application was pending (but she was apparently working in the office), the DA changed the policy to eliminate all exemptions except for where vaccination posed a significant risk of death or other serious injury.  This change occurred based on the then-rising wave of cases involving the omicron variant and an analysis that religious exemptions were not required (which agreed with our thoughts here).  Plaintiff’s application for an exemption was denied and she was given two weeks to get at least the first dose of a two-part COVID-19 vaccination regimen.  Rather than request an accommodation (like working from home), plaintiff refused to comply and was fired after three weeks of “Unvaccinated Leave.”  She sued two weeks later and later declined a proposed accommodation.

Plaintiff’s argument was that the policy, as written and applied, violated her right to free exercise of religion largely because it had a medical exemption but not a religious one.  If you have been following our other writing on similar cases, then you might have a good idea where this case ended up.  Vaccine mandates often pass constitutional muster, even without religious exemptions.  This one did.  “The undisputed evidence shows that this Policy was intended to prevent sickness and death to the maximum extent possible, and that a single medical exemption was allowed because it furthered those same goals.”  Id. at *5.

Constitutional claims often turn on the level of scrutiny.  The Spivack court made clear that plaintiff would lose summary judgment regardless of whether strict scrutiny or a rational basis standard applied, but it found the lower standard applied because the final policy was neutral toward religion as was generally applicable, as written and applied.  It was neutral because it did not mention anything about religion and was not driven by some hostility toward religion or specific religions.  The DA “eliminated the religious exemption only after he was convinced that it was not required legally, and that mandating vaccination was essential to the health of his staff and the many people who came into contact with his staff.”  Id. at *6.  Once the policy changed, no application for a religious exemption was granted.

General applicability, in turn, depends on whether the policy favors comparable secular conduct over religious conduct and/or allows for improper individualized exemptions. 

It is plain that the medical and religious exemptions, when judged against these interests, do not regulate “comparable” conduct: a stringent medical exemption promotes health and safety; a religious exemption threatens health and safety. Every Court of Appeals that has considered the comparability of the risks associated with medical and religious exemptions from COVID-19 vaccine mandates (albeit at the preliminary injunction stage) has arrived at this same conclusion.

Id. at *7.  (We discuss those same appellate cases here.)  The second part of the inquiry was similar.  The defined medical exemption—granted only upon proof of a risk of death—and the non-existent religious exemption in the final policy did not allow for problematic discretion.

The policy met both strict scrutiny and the lower rational basis standard.  As to the former,

The DAO thus “seriously considered substantially less restrictive alternatives” in the hope that they could achieve the Office’s compelling interest—trying “to keep people as safe as we can.”  Concluding that these alternatives were inadequate, the Office required vaccinations non-union employees save one.

Id. at *10 (internal citation omitted).  Thus, plaintiff’s constitutional right to free exercise of religion was not violated by the policy as written and applied.  This has been the result in the overwhelming majority of decisions we have seen about COVID-19 vaccination policies, especially in the employment context.  While COVID-19 continues to have public health implications, maybe it is time for some of the lingering lawsuits to go away.