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 
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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, 
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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
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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.
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In the interest of judicial economy, we direct the Clerk of Court to refer any 

further proceedings in these two matters to this panel.