Supreme Court allows NYS vax mandate to stand

— Graph from the American Health Care Association and National Center for Assisted Living

ALBANY COUNTY — Today, the United States Supreme Court allowed New York State’s mandatory vaccination of health-care workers, regardless of religious objections, to stand.

The unsigned ruling provided no reasoning but included a dissent from Justice Neil M. Gorsuch, who was joined by Justice Samuel A. Alito Jr. The order also said that Justice Clarence Thomas “would grant the application.”

When Kathy Hochul replaced Andrew Cuomo as New York’s governor at the end of August, she instituted the statewide vaccination mandate for health-care workers after Cuomo had indicated both medical and religious exemptions would be granted. The mandate went into effect at midnight on Sept. 27.

Two different suits had been filed in New York State, challenging the order. A federal judge in Utica, David M. Hurd, had ruled in favor of the challengers while a federal judge in Brooklyn had ruled against them. 

At a Sept. 15 press briefing, Hochul said that allowing health-care workers to regularly test negative for COVID-19, rather than be vaccinated, was intentionally left out of the regulations.

“We’ll be defending this in court ….,” she said. “I’m not aware of a sanctioned religious exemption …. Everyone from the pope on down is encouraging their members to get vaccinated.”

The day after Hurd’s Oct. 12 ruling, Hochul called his decision “disappointing” and said she was working on an appeal.

“We believe it works,” she said of the mandate. “It has a dramatic effect.”

Hochul displayed quotes from what she termed “a broad representation” of religious leaders, urging people to get vaccinated.

Hochul said that vulnerable patients deserved to have confidence that those caring for them would not infect them with COVID-19. “My responsibility,” Hochul said, “has always been to protect the people of this state.”

She acknowledged the importance of personally held religious beliefs, but concluded, “We also have a public-health objective, which is overriding.”

The Sept. 13 complaint from unnamed health-care workers said they held sincere religious belief that they “cannot consent to be inoculated . . . with vaccines that were tested, developed or produced with fetal cell line[s] derived from procured abortions.”

Their case was argued by lawyers from the Thomas More Society, a conservative Catholic law firm based in Chicago, which has fought abortion and same-sex marriage through lawsuits and also filed cases as part of Donald Trump’s attempts to overturn the results of the 2020 presidential election.

The two cases together were heard by the United States Court of Appeals for the Second Circuit, which did not block the requirement, reversing Hurd’s ruling, leading to the Supreme Court.

“We acknowledge that Plaintiffs may possibly suffer significant employment consequences if they refuse on religious grounds to be vaccinated,” wrote the unanimous panel of three judges. “It is well settled, however, that adverse employment consequences are not the type of harm that usually warrants injunctive relief because economic harm resulting from employment actions is typically compensable with money damages.”

The appeals court decided, rather, that the vaccination mandate for health-care workers was “a reasonable exercise” of the state’s power to protect public health.

Gorsuch wrote in his dissenting opinion, “Today, we do not just fail the applicants. We fail ourselves. It is among our Nation’s proudest boasts that, ‘[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in [matters of] religion.’”

 

Masking required

Monday was also the day that the governor’s mask mandate, announced on Friday, went into effect. New Yorkers, regardless of vaccination status, are to wear masks indoors in public places.

This measure is effective until Jan. 15, after which the state will re-evaluate.

Businesses and venues that implement a proof-of-vaccination requirement must ensure that anyone 12 years of age or older is fully vaccinated before entering indoors.

The state has set up an online Frequently Asked Questions resource for business owners and the general public.

It explains that masks are required in an indoor public place, defined as any indoor space that is not a private residence — that is, businesses and venues that are publicly owned or owned by a private business. This includes indoor entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, office buildings, shopping centers, grocery stores, pharmacies, houses of worship, and common areas in residential buildings.

The new mask mandate is in line with recommendations from the Centers for Disease Control and Prevention, which for months has labeled New York State — including Albany County — as having a “high” rate of community transmission of COVID-19. Both a “high” rate and a “substantial” rate — the top two of four categories — are to trigger masking-wearing indoors in public.

A violation of the state requirement “is subject to all civil and criminal penalties, including a maximum fine of $1,000 for each violation,” according to the governor’s office. Local health departments are being asked to enforce these requirements. 

It is so far unclear how enforcement will be carried out. Mary Rozak, spokeswoman for Albany County Executive Daniel McCoy’s office, told The Enterprise on Friday that the county health department was waiting for guidance from the state.

Enforcement of mandates under the Cuomo administration was left to local law enforcement, Rozak noted, which was a challenge. “The sheriff said, after a complaint, sometimes by the time you got there, the offending parties had put on masks or left,” Rozak recalled.

Although the county’s health department has a staff that performs enforcement duties, for example, with restaurant inspections, those are regularly scheduled, set for a predetermined time, said Rozak. “This is a whole different ballgame,” she said.

“Taking this action now is critical to slowing the COVID-19 winter surge during the holidays,” said Mary Bassett, the state’s acting health commissioner, in a statement on Monday. “Each of you can contribute: get vaccinated, get boosted if you are already vaccinated, and wear a mask. We urge the public to support these new requirements in indoor public places by cooperating with the venues. We need everyone to do their part to get through this together.”

 

Arts grants

Hochul on Monday announced $45 million in grant awards through the New York State Council on the Arts. 

In June 2021, the council rolled out a grantmaking process to increase access to state funds through expanded eligibility that led to a nearly 40-percent increase in applications for fiscal year 2022 to date, according to the governor’s office.

Following a streamlined application process, the agency will continue to support those severely impacted by the ongoing effects of COVID-19 through flexible funding accommodations.

NYSCA’s Round Three grants include Support for Organizations, Support for Artists, Special Opportunities, and Recovery Grants.

In Albany County, Albany Center Galleries Inc., Albany Barn Inc., the Albany County Historical Association, and the Albany Institute of History and Art each received $49,500 in Support for Organizations funds.

The Albany County Historical Association, the Albany Institute of History and Art, and Albany Barn Inc. also each received $10,000 in Recovery Funds.

More than 60 percent of NYSCA’s fiscal year 2022 grantees have organizational budgets of $1 million or less.

“The arts have long been a critical sector in our economy, and as we continue to rebuild a stronger New York, it’s essential we do all we can to help this industry thrive once again,” said Hochul in a statement, making the announcement.

 

Required vaccinations

Required vaccination is partly the cause of the severe loss of nursing-home workers, opponents say, although other causes include low pay and difficult working conditions. “Chronic Medicaid underfunding, combined with the billions of dollars providers have spent to fight the pandemic, have left long-term care providers struggling to compete for qualified staff,” said Mark Parkinson, president of the American Health Care Association and National Center for Assisted Living, representing more than 14,000 nursing homes and assisted living communities across the United States.

 

Newest numbers

Saturday’s death of a man in his nineties brought the Albany County COVID-19 death toll to 457.

On Monday morning, McCoy reported 106 new cases of COVID-19, bringing the county’s five-day average of new cases down to 171.2.

Albany County’s most recent seven-day average of cases per 100,000 is now down to 50.1, McCoy reported in his Monday morning release.

The county currently has 536 active cases of COVID-19 and 1,190 county residents are under quarantine.

There were seven new hospitalizations since Sunday and there are now 53 residents hospitalized with COVID-19, a net increase of five. Nine of those hospital patients are in intensive-care units.

Statewide, according to a release from the governor’s office, there are now 38 confirmed cases of the Omicron variant of the coronavirus: one each in Broome, Onondaga, and Westchester counties; two each for Tompkins and Oneida counties; three for Nassau; four for Montgomery; 23 for New York City; and one unknown.

As of Sunday, 76.4 percent of all Albany County residents have received at least the first dose of the vaccine, and 69.2 percent have been fully vaccinated. The first-dose vaccination rate for county residents who are 18 and older is 85.5 percent.

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