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Healthcare workers fail to obtain TRO against state COVID-19 vaccine regulation

By Brandi O. Brown, J.D.

A federal district court in Rhode Island denied the request for a TRO filed by a group of healthcare workers who sought injunctive relief after the state promulgated an emergency regulation requiring healthcare workers to be vaccinated against COVID-19 by October 1, 2021. They claimed that the regulation violated the U.S. Constitution and Title VII because it did not allow the workers to obtain a religious exemption. The court found that they did not demonstrate a likelihood of success on the merits of those claims. In particular, the court noted that employers may still be able to provide religious accommodation (Dr. T v. Alexander-Scott, September 30, 2021, McElroy, M.).

New COVID-19 regulation. On August 17, 2021, the Rhode Island Department of Health promulgated a regulation requiring all healthcare workers, except those who met a very narrow medical exemption, to be vaccinated against COVID-19 by October 1. According to the workers, the regulation did not include an opportunity for a worker to obtain a religious exemption and therefore violated the U.S. Constitution and Title VII.

Healthcare workers seek relief. They sought a temporary restraining order and asked the court to enjoin the health department from enforcing any requirement that employers deny religious exemptions or that they revoke any exemptions already granted before the regulation was promulgated. They also sought to enjoin the department from interfering with the granting of religious exemptions going forward and from taking any disciplinary action against them. They also asked that the court, if it were to deny their request for a TRO, to issue an order denying a preliminary injunction.

Likelihood of success? Concluding that the state defendants would be unduly prejudiced if not allowed an opportunity to develop a factual record before consideration of a preliminary injunction, the court focused solely on the request for a temporary restraining order. In deciding whether to grant a TRO, the court noted, it had to consider four factors: (1) the likelihood of the healthcare workers’ success on the merits; (2) the potential for irreparable harm if relief was denied; (3) the balance of hardships; and (4) the effect of the court’s ruling on the public interest. If the first factor is not established, the court noted, the other prongs become irrelevant and the healthcare workers bear the burden of demonstrating that the factors weighed in their favor.

Not on Supremacy Clause claim. In this case, the court concluded, the workers did not meet their burden. Regarding the constitutional claims made by the workers, the court noted that it has long been held that mandatory vaccination laws are a valid exercise of a state’s police powers. As a result, those laws have withstood constitutional challenge.

The workers also argued that the regulation compels healthcare employers to disregard Title VII and, as a result, violate the Supremacy Clause of the U.S. Constitution. The state defendants’ response was two-fold. First, they argued, the Supremacy Clause does not create a private right of action. Second, they argued, the regulation does not compel healthcare facilities to refuse to consider religious accommodation. Regarding the former, the court agreed that the U.S. Supreme Court has held that reading a private right of action into the Supremacy Clause would be “strange.”

Not preempted. The next question, however, was whether the state regulation was preempted by Title VII. Again, observed the court, the U.S. Supreme Court has weighed in on this issue, emphasizing that there is a strong presumption that state regulation of health and safety matters are not invalidated under the clause. The court explained, “Federal preemption of a state health and safety regulation will be found only in situations where it is ‘the clear and manifest purpose of Congress.’”

May still be able to accommodate. Preemption can either be done by an express provision of statute or through conflict preemption. Title VII did not expressly preempt state public-health regulations, which the healthcare workers conceded. Instead, they argued that the regulation interferes with their rights under Title VII, contending that it “outright forbids” them from seeking or retaining reasonable accommodations according with their sincerely held religious beliefs. However, the court explained, this was not an accurate reading of the regulation’s text. Nothing in the language of the regulation prevents an employer from providing such an accommodation—rather, the regulation is silent on the issue.

While the regulation may make it more difficult for employers to accommodate religious objections, the court observed, that does not create a “physical impossibility.” There was no likelihood of the workers’ success on the merits of their claim that the regulation makes reasonable accommodation virtually impossible. Thus, they failed to make out a case of likelihood of success on the merits of their Title VII claim and the court denied the TRO.