By Michael Nevradakis, Ph.D.

A key U.S. Department of Justice (DOJ) official has recommended the U.S. Supreme Court deny an appeal by former New York healthcare workers who lost their jobs after their COVID-19 vaccine religious exemptions were denied. Law360 first reported the story.

Solicitor General D. John Sauer wrote in an amicus brief Monday that the plaintiffs’ appeal doesn’t cite any conflicting federal appeals court opinions that would have to be resolved, and that the fired workers didn’t prove they sought any accommodations other than a full religious exemption.

“The petition … does not present a conflict among the courts of appeals that warrants this Court’s review,” Sauer wrote. “Nor is there any conflict regarding broader Title VII principles,” referring to Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination.

Kim Mack Rosenberg, general counsel for Children’s Health Defense, said the solicitor general’s brief “incorrectly analyzed critical points here that may have an impact on thousands of healthcare workers improperly and illegally denied accommodations during COVID. This is concerning because the Court historically gives weight to the Solicitor General,” she said.

The workers filed their lawsuit, Does 1-2 v. Hochul, in 2021, challenging a now-repealed New York state law mandating that workers in some healthcare-related positions get the COVID-19 vaccine.

According to Law360, the law allowed “medical exemptions and the possibility of religious accommodations,” under which workers could be transferred to remote work or positions considered low risk to the public. However, the law did not fully “exempt workers from the mandate based on their religious convictions.”

New York attorney Sujata Gibson, who has represented clients in other religious exemption cases but is not connected to this lawsuit, said the distinction between a full exemption and an accommodation is “largely meaningless.”

“Healthcare workers were not lawyers speaking in technical Title VII formulas. They were simply asking to continue working without violating their religious convictions,” Gibson said.

The plaintiffs included five former healthcare workers — four of whom were fired after refusing to comply with the mandate — and the owner of a senior care facility that had to shut down after he refused the vaccine.

New York Gov. Kathy Hochul, New York Health Commissioner Howard Zucker and three nonprofit corporations that operate healthcare facilities in the state were named as defendants.

The employers argued that granting the workers’ religious exemption requests would pose an “undue hardship” to their businesses — the only legal exception under which a state law can supersede Title VII.

Gibson said Sauer’s position was “disappointing but not entirely surprising,” as the solicitor general’s office “traditionally defends broad governmental and administrative authority.”

“During the COVID era, the federal government itself implemented major vaccine-related policies affecting federal employees, contractors, healthcare systems and the military,” Gibson said.

A DOJ spokesperson declined to comment on the case.

‘Unusual’ for solicitor general to weigh in on case not directly tied to federal government

In 2022, a federal court dismissed the lawsuit, and in 2024, the 2nd U.S. Circuit Court of Appeals upheld the dismissal.

In 2025, the workers appealed to the U.S. Supreme Court, arguing that the 2nd Circuit “impermissibly flipped the Supremacy Clause,” under which federal law supersedes state law, “on its head.”

The plaintiffs also asked the Supreme Court to consider whether the employers in question would, in fact, have suffered an “undue hardship” if they had granted the religious exemptions.

In December 2025, the Supreme Court asked the Office of the Solicitor General — who supervises and conducts the federal government’s litigation in the Supreme Court — to weigh in.

Mathew D. Staver, founder and chairman of Liberty Counsel and an attorney for the plaintiffs, told The Defender it is unusual for the solicitor general to weigh in on a pending case not directly involving the federal government.

“I’ve been litigating since 1987. We’ve done a lot of Supreme Court cases. It’s the first case that I’ve had that I’ve been involved with, that the solicitor general was asked to weigh in,” Staver said. He said Sauer’s stance was “disappointing.”

“It’s, frankly, sloppy work from the solicitor general’s position, because they ignore the specific, critically important issues in the case and what was argued and what was briefed in the case, including before the Supreme Court,” Staver said.

Employees who sought full religious exemptions ‘ordered to be fired’

In their complaint, the plaintiffs argued that New York’s vaccine mandate for healthcare workers and the defendants’ actions violated Title VII — and the Constitution’s Free Exercise and Equal Protection clauses.

The workers also said the state’s vaccine mandate did not allow employers to consider any requests for religious accommodation. Employees requesting full religious exemptions were “ordered to be fired,” according to Liberty Counsel, while employers were subject to “daily fines” and loss of their business licenses.

“The U.S. Constitution and federal law are crystal clear: States can give citizens more rights than federal law offers, but those states cannot take away any rights the Constitution or the federal law provide,” Liberty Counsel wrote last year.

Sauer disagreed. In his brief, Sauer wrote that granting the plaintiffs’ “sole request for a religious exemption would have required [employer respondents] to violate” the state regulation. This, in turn, “would have subjected employer respondents ‘to financial penalties or a suspension or revocation of their operating licenses.’”

Sauer said this “undue hardship” trumps the Supremacy Clause — but also argued that this was not the main issue in this case. “Rather, the principal dispute in this case involves state law, making this case an unsuitable vehicle for this Court’s review,” Sauer wrote.

According to Sauer, the trial and appeals courts were correct in finding that New York’s vaccine mandate left “room for religious accommodations short of complete exemptions” and, as a result, did not directly conflict with Title VII.

“Petitioners did not allege that they sought and were denied other accommodations aside from a complete exemption; it is thus an open question whether petitioners

could have shown that, in practice, [New York’s vaccine mandate law] did not allow any religious accommodations,” Sauer wrote.

Sauer also argued that the plaintiffs’ claim is moot because New York repealed its vaccine mandate for healthcare workers in 2023.

Solicitor General’s brief ‘really missed the mark’

According to Staver, Sauer’s argument “really missed the mark, because it focuses only on an issue that really wasn’t part of the central aspect of the case.” He said Sauer focused on the plaintiffs’ “direct challenge” to the now-repealed mandate.

“The problem is that the litigation involves the hospital defendants and there’s a damage claim. So, the case is never going to be moot,” Staver said.

Staver noted that the healthcare facilities named as defendants all acted with “unanimity” with respect to “how they interpreted the mandate.” He said this is evidence that the defendants had no intent to consider any religious exemption or accommodation requests from their employees.

“There’s no issue of misinterpretation or different interpretations,” Staver said. “It’s very clear. The hospitals in this case, across the board, it’s undisputed, understood the mandate to say that they could not even consider any religious accommodation request.”

Gibson said Sauer’s brief “acknowledges there was ambiguity surrounding what accommodations supposedly remained available under the mandate.”

“Yet, the brief still adopts the legal fiction that meaningful accommodations somehow existed in theory. In reality, many employers treated the mandate as requiring blanket denial of religious accommodation requests,” Gibson said. “Employers simply pointed to the state mandate and terminated workers en masse.”

Gibson said Sauer’s brief — and the distinction between an “exemption” and an “accommodation” — also ignores prior Supreme Court precedent. She said:

“That distinction became especially untenable after the Supreme Court’s decision in Groff v. DeJoy. Under Groff, the burden is on the employer to demonstrate that it actually considered all possible accommodations and that accommodating the employee would impose substantial hardship in the real-world operation of the business.

“Title VII does not place the burden on employees to guess the precise combination of words or accommodations that might survive administrative scrutiny.”

Fully remote employee fired for not getting vaccinated

Staver said the defendants’ unwillingness to consider any exemption or accommodation requests is evidenced by the examples of some of the plaintiffs.

One plaintiff, “a 10-year employee” of one of the defendants’ facilities, “had an exemption for all vaccines” and worked remotely during the entire period of his employment. He had initially received an exemption to COVID-19 vaccination, but when the mandate came into effect, his employer “rescinded all of his exemptions,” Stave said.

“There’s no other possible accommodation that this employee could have asked for other than to work remotely like he had been doing for 10 years,” Staver said. The employee was subsequently terminated.

Another plaintiff was the owner of a senior care facility. According to Staver, he was told by state officials that “he would be fined $1,000 per day per employee” for non-compliance with the mandate and would eventually lose his business license.

“That 50-year-old nursing home went out of business because it couldn’t survive that mandate,” Staver said.

‘If they get away with doing this during COVID, they can do it for any vaccine’ 

According to Staver, the solicitor general’s opinion “carries a lot of weight” with the Supreme Court and will likely impact its decision to hear the case or not.

Gibson said Sauer’s brief offers the Supreme Court “an institutional off-ramp.”

“The Supreme Court historically gives substantial weight to the solicitor general’s views, particularly in cases involving federal statutory interpretation and conflicts between federal rights and state authority,” she said.

“The brief argues that the mandate has already been repealed, that the 2nd Circuit merely applied ordinary Title VII principles, and that the practical significance of the dispute is now limited. If the court accepts that framing, it will likely decline to review the case,” Gibson said.

Staver suggested this could set a dangerous precedent for future public health emergencies and vaccine mandates.

“If they get away with doing this during COVID, they can do it for any vaccine,” Staver said. “It’s a significantly important issue not only for medical freedom, but even beyond that with regard to the preemption of federal law over state law when there’s a specific conflict between the two.”

Gibson said that if the Supreme Court rejects the case, the lawsuit wouldn’t necessarily be dismissed.

“That would not necessarily end the broader litigation. Many individual employment and damages claims remain active or may continue in lower courts. The legal focus would shift toward employer-specific facts,” Gibson said.

She said the brief does at least have some helpful language, which may be used later to “try to push back on the current stance that ‘any’ accommodation would violate the mandate.”

It is unclear whether Sauer’s position is compatible with the findings of the DOJ’s Religious Liberty Commission, which President Donald Trump established last year to “safeguard and promote America’s founding principle of religious freedom.”

In February, the commission heard testimony from a New York City worker — unconnected to this lawsuit — who was fired for refusing a COVID-19 shot on religious grounds.

Gibson said a subsequent Supreme Court rejection of the plaintiffs’ appeal may adversely affect other pending religious exemption cases.

“If the Supreme Court declines review, most of the 64,000 workers who were largely fired for failing to violate their religious beliefs will never see any relief,” Gibson said.

“Regardless of where people stand politically, Americans should be concerned whenever emergency governmental power collides with fundamental civil-rights protections and meaningful individualized review disappears.”

Related articles in The Defender

• ‘Demonized and Ostracized’: Worker Fired Over COVID Shot Testifies Before Religious Freedom Commission
• Breaking: Congress Members Urge DOJ to Investigate 4 States That Prohibit Religious Exemptions
• ‘Right These Wrongs’: CHD Asks Sen. Moreno to Seek Justice for Workers Fired Under COVID Vaccine Mandates
• New York Teachers Vow to Keep Fighting After Supreme Court Turns Down Religious Exemptions Case
• Fired New York Workers Who Sued City Over COVID Vaccine Mandates Say New Rehiring Plan Falls Short, Urge Supreme Court to Hear Their Case

The post DOJ Sides With Employers Who Fired Healthcare Workers Over COVID Vaccine Mandate appeared first on Children’s Health Defense.

 

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