New York State Public Health Law § 2164 requires that children from the ages of two months to 18 years, must be immunized from certain diseases, including measles, if they wish to attend school or a child-care facility. The law permitted two exemptions, one for medical reasons and the other, a religious exemption which only required a statement by the parent or guardian of the child indicating that they objected to the vaccination on religious grounds. A few years ago, this religious exemption was eliminated resulting in a lawsuit by some parents claiming this was unconstitutional. A New York appellate court recently took up the case, finding that the law is constitutional. Despite the Court’s rejection of the parents’ arguments, this issue is not likely to go away, so it is important to understand the Court’s rationale. 

In the fall of 2018, there was a measles outbreak which was concentrated in communities in Brooklyn and Rockland County which had extremely low immunization rates for children in the pertinent age group. The State and County Commissioners of Health thereafter advised certain schools in those areas to exclude children who had not been vaccinated as a result of the religious exemption. Thereafter, the New York State Legislature adopted bills repealing the religious exemption which went into effect in June of 2019.

Parents from throughout the State whose children had previously been granted religious exemptions thereafter commenced a declaratory judgment action seeking to have the legislation declared unconstitutional on, inter alia, religious grounds claiming that the legislation was motivated by “active hostility towards religion and thus violated the Free Exercise Clause.” Before submitting an answer, Defendants moved to dismiss the complaint. The lower court granted Defendants’ motion finding that the statute which was repealed was “a neutral law of general applicability driven by public health concerns and not tainted by hostility.” The Plaintiffs appealed to the New York Supreme Court, Appellate Division, Third Department.

The decision in F.F. as Parent of Y.F., et al. v. State of New York, et al., upheld the legislation after performing a constitutional analysis of the legislation. The Court stated that although it would appear that the repeal of an exemption on the basis of religious beliefs would seem to target the First Amendment, the outcome here merely treats the children who were previously exempt exactly the same way as those children who previously were required to obtain the measles vaccine because their parents did not have a religious objection. Thus, the Plaintiffs’ argument that the legislation violated their rights to equal protection was rejected by the Court.

The Court also found that the legislation had a rational basis because the targeted group, school children, spend significant amounts of time in close contact with one another while in school and daycare, and are much more likely to spread communicable diseases, such as measles. Therefore, the Legislature was within its power to require that more children be vaccinated. Further, the repeal of the religious exemption did not require children with medical exemptions to be vaccinated, thus, the repeal did not place children in jeopardy. On the contrary, the more children who were vaccinated, the safer the conditions were for those children who could not be vaccinated for medical reasons.

The Court also rejected Plaintiffs’ claim that the legislation impacted their freedom of speech under the State and Federal Constitutions, finding that compliance with the legislation was conduct rather than constitutionally protected speech. The Court went on to say that while Plaintiffs remain free to express their views regarding vaccinations, they must decide whether they want their children to attend school and if so, they need to have them vaccinated. The Court thus affirmed the lower court’s decision and dismissed Plaintiffs’ claims. It seems likely that this matter will be appealed to a higher court, but at least for now, the legislation has been upheld.

While this case specifically addresses vaccination of school children for common diseases, the issue of religious exemptions to vaccine requirements has become a bigger concern because of COVID. Can schools require a COVID vaccine? 

This also has implications for workplaces. Some employers may require employees to be vaccinated, but businesses are also subject to discrimination laws and are obligated to reasonably accommodate an employee’s sincerely held religious belief, practice or observance unless the accommodation would pose an “undue hardship” on the employer’s business. How can employers balance these competing priorities?

If you have objections to a mandatory vaccination requirement or you are thinking of instituting such a policy for your business, contact one of our attorneys for a consultation.