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Health care workers seek legal advice on state’s vaccine mandate

September 30, 2021

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With the state mandating COVID-19 shots for all health care workers, law firms are fielding a flood of calls from potential clients, who are asking what they can do to challenge the mandate.

“I’m not even sure I’d be able to quantify it, but I can think of at least one attorney in this room who does at least five consults a day, and that’s only one attorney. So, it’s definitely a large number,” labor and employment attorney Melanie Franco of Tully Rinckey said.

The Albany-based firm is providing advice to folks looking to navigate mandates through religious or medical expeditions.

Franco says filing a lawsuit on the matter is difficult. She says it’s hard to argue unconstitutionality, but there could be potential for a discrimination lawsuit.

“It does depend why they didn’t get the vaccine,” said Franco. “If they can point to a religious exemption or a medical accommodation that should have been granted in lieu of the vaccine, then they could have grounds to bring a complaint to the Division of Human Rights for discrimination.”

She says the state’s mandate for health care workers is not outright unconstitutional because working is a choice.

“The mandate itself does not have any unconstitutional issues that I’ve seen. The issue comes with, especially health care workers, about whether or not it’s OK to remove the ability to get a religious exemption from it,” said Franco.

She says it may be difficult to be granted a religious exemption if you haven’t done it for other vaccines.

Also, there is a current case filed against removal of religious exemption.

“And depending on the decision with that, if they find that is OK to remove the religious exemption, I could see people still pursuing actions about it, although there will be precedent to show that it is OK to remove it,” Franco said.

As for medical exemptions, Franco says it’s been difficult because there hasn’t been many instances in which doctors have advised not to get the vaccine.

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