Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this motion: Papers NYSCEF Document(s) Defendant’s Motion to Dismiss, with supporting documents (filed September 8, 2023) 6-10 Plaintiff’s Opposition to Defendant’s Motion (filed October 6, 2023) 15 Defendant’s Reply to Plaintiff’s Opposition (filed November 9, 2023) 16 DECISION and ORDER The plaintiff, Bekheit Salamoon, MD (hereinafter “Plaintiff”), was a medical resident employed by the defendant, Richmond University Medical Center (hereinafter “Defendant”), a non-profit hospital and healthcare facility located in Staten Island, New York. Plaintiff commenced this action by filing a summons and complaint on June 9, 2023, alleging that Defendant failed to reasonably accommodate his sincerely held religious objection to a mandatory COVID-19 vaccination policy, wrongfully rescinded his previously granted religious exemption, and illegally terminated his employment in violation of the New York State Human Rights Law (Executive Law §290 et seq.) (hereinafter “the NYSHRL”), and New York City Human Rights Law (NYC Admin Code §8-101 et seq.) (hereinafter “the NYCHRL”). Defendant has filed the instant motion seeking dismissal of the complaint for failure to state a cause of action (CPLR §3211 [a] [7]). Plaintiff filed opposition to the motion, to which Defendant filed a reply. Oral argument was heard on December 7, 2024, with both Plaintiff and Defendant appearing by counsel. The motion was marked as fully submitted, and the Court’s decision was reserved. For the reasons set forth herein, Defendant’s motion to dismiss is GRANTED. Background In March of 2020, Plaintiff was hired by Defendant as a medical resident in internal medicine and, in June of 2021, was re-hired for his second year of residency. On August 26, 2021, the New York State Department of Health (“DOH”) issued an emergency regulation (hereinafter “the Mandate”), which required all “[c]overed entities”, including hospitals such as Defendant, to require “personnel to be fully vaccinated against COVID-19″ and receive their first dose of the vaccine by September 27, 2021 (10 NYCRR §2.61). The regulation defined “personnel” to include “members of the medical and nursing staff, contract staff, students, and volunteers, who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease.” Plaintiff does not dispute that his position was covered by the Mandate’s terms. The Mandate expressly provided for a medical exemption in cases where it could be medically certified that the vaccine would be detrimental to an employee’s health based on a pre- existing condition (id. §2.61 [d] [1]). In contrast, the Mandate was silent on whether religious exemptions would be permitted. On September 7, 2021, Defendant announced that all employees were required to receive the COVID-19 vaccination by September 27, 2021. Plaintiff submitted a request for an exemption from Defendant’s vaccination policy based on his religious beliefs as a Christian. Within his request, Plaintiff stated that he could not “given his sincere religious beliefs, consent to being inoculated at all, much less ‘continuously,’ with vaccines that were knowingly tested, developed or produced with cell lines derived from the bodies of aborted babies, some of [which] were even elective abortions…” On or about September 27, 2021, the date of the Mandate’s deadline, Defendant directed unvaccinated employees, including Plaintiff, to undergo weekly COVID-19 testing and wear facemasks at all times. There is no dispute that Plaintiff complied with these requirements. On or about October 10, 2021, Defendant asked Plaintiff to complete a questionnaire that it would use to “understand the basis and source of [his] religious beliefs to reasonably assess whether [his] request qualifies for a religious accommodation.” In its questionnaire, Defendant expressly stated that it would provide “reasonable accommodations for an individual’s sincerely held religious beliefs, practices, and observances unless providing a reasonable accommodation would result in an undue hardship to the business.” Plaintiff submitted his completed questionnaire on October 13, 2021 and, in his responses, explained how his Christian beliefs conflicted with the COVID-19 vaccine. In the intervening period, a federal district court granted a preliminary injunction enjoining DOH from taking any action to enforce the Mandate against covered entities that granted, or personnel who were granted, such religious exemptions (A. v. Hochul, 567 F Supp 3d 362 [ND NY 2021]). Defendant approved Plaintiff’s religious exemption and directed him to continue following its testing and masking protocol in lieu of vaccination. On November 15, 2021, DOH issued a notice to covered entities, including Defendant, stating that they must ensure that all covered personnel “who were previously granted religious exemptions have documentation of either a first dose [of the] COVID-19 vaccination or a valid medical exemption” by November 22, 2021 (see Letter from Jennifer L. Treacy, Deputy Dir., Off. Of Primary Care & Health Sys. Mgmt. [Nov. 15, 2021], dal_21-11.pdf [ny.gov] [last visited Mar. 25, 2024]). DOH’s clarification followed several significant decisions rendered by the United States Court of Appeals for the Second Circuit. On October 29, 2021, the Second Circuit vacated the preliminary injunction ordered by the district court (We the Patriots USA, Inc. v. Hochul, 21- 2179, 2021 WL 5103443 [2d Cir 2021]). In an opinion issued on November 4, 2021, the Second Circuit upheld the Mandate and found that it did not require employers to violate Title VII of the Civil Rights Act of 1964 (We the Patriots USA, Inc. v. Hochul 17 F4th 266, 292 [2d Cir 2021]). In a clarifying opinion issued on November 12, 2021, the Second Circuit further distinguished a blanket religious exemption, as prohibited by the Mandate, from a permissible religious accommodation whereby an employer removes the employee from the scope of “personnel” as defined within the Mandate (We the Patriots USA, Inc. v. Hochul, 17 F4th 368, 370 [2d Cir 2021]). On November 17, 2021, Defendant announced that it was now required by DOH, as a covered entity, to ensure that all personnel who were previously granted religious exemptions provide documentation of either a first dose of the COVID-19 vaccination or a valid medical exemption by November 22, 2021. Furthermore, Defendant informed its employees that it could not approve any requests for religious exemptions because it would pose an undue burden to the hospital and negatively impact operations. Defendant indicated that it considered compliance with the Mandate, as clarified by DOH subsequent to the federal court rulings, to be mandatory. The next day, Plaintiff “appealed” to Defendant’s Human Resources Department but was unsuccessful. Plaintiff also submitted a request for a medical exemption based on a “robust natural immunity” to COVID-19, which Defendant denied. On November 22, 2021, Plaintiff was advised by his supervisor that he was not authorized to work without proof of a COVID-19 vaccination and was instructed to leave the hospital. Plaintiff alleges, and Defendant does not dispute, that his employment was terminated that day. Procedural History On or about November 22, 2021, Plaintiff filed a complaint with the New York State Division of Human Rights which was dismissed on the grounds of “administrative convenience” on March 16, 2022. On October 4, 2022, Plaintiff filed a civil action in the United States District Court for the Eastern District of New York asserting claims under Title VII of the Civil Rights Act of 1964, the NYSHRL, and the NYCHRL, which was voluntarily dismissed without prejudice on May 18, 2023. Plaintiff commenced the instant action on June 9, 2023, bringing causes of action alleging claims for religious discrimination in violation of the NYSHRL and NYCHRL on the grounds that Defendant failed to reasonably accommodate his sincerely held religious objection to a mandatory COVID-19 vaccination policy, wrongfully rescinded his previously granted religious exemption, and illegally terminated his employment. In opposing the motion, Plaintiff clarified that he is asserting “failure-to-accommodate claims” and not disparate treatment claims based on his Christian faith. Plaintiff is seeking back pay, front pay, lost future earnings, out-of-pocket costs, compensatory damages, punitive damages, and attorney’s fees and costs. Standard of Review In considering a motion to dismiss for failure to state a cause of action (CPLR 3211 [a] [7]), the court must accept the facts alleged in the complaint as true and afford the plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). The role of the court is to determine only whether the four corners of the pleading contain factual allegations which can fit any cognizable legal theory without giving any consideration for whether the plaintiff can ultimately establish the truth of their allegations before the trier of fact (id.; see 219 Broadway Corp. v. Alexander’s, Inc., 46 NY2d 506, 509 [1979]). If the court concludes that the plaintiff can succeed upon any reasonable view of the facts as averred, then it must declare the complaint as legally sufficient (see Aristy-Farer v. State of New York, 29 NY3d 501, 509 [2017]; see also Campaign for Fiscal Equity, Inc. v. State, 86 NY2d 307 [1995]; see also Dee v. Rakower, 112 AD3d 204, 208 [2d Dept 2013]). Conversely, “[d]ismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery’ (Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]). Discussion Defendant claims that its recission of Plaintiff’s religious exemption was not a discretionary policy decision but, rather, was done at the direction of DOH and in accordance with rulings by the United States Court of Appeals for the Second Circuit. According to Defendant, had it permitted Plaintiff, a medical resident in its internal medicine department, to work, in- person, treating patients and consulting other doctors and staff, it would have violated a binding state regulation and faced potential pecuniary penalties and revocation of its operating license. Therefore, Defendant argues that Plaintiff fails to allege facts sufficient to state a cause of action that it could have granted Plaintiff’s request for a religious exemption from the Mandate’s vaccination requirement without suffering undue hardship. In response, Plaintiff argues that he alleged valid claims that Defendant violated his right to a reasonable religious accommodation guaranteed by the state and city human rights laws, and that DOH did not have the authority to impose any rules limiting that right. In his complaint, Plaintiff specifically asserted the right to be exempted from the mandatory COVID-19 vaccine, which conflicts with his sincerely held religious beliefs, and to be allowed to continue his regular employment while following the same health and safety protocols that were in place before Defendant announced the prohibition of religious exemptions. Plaintiff argues that Defendant erred in relying on We The Patriots, because the decision was flawed in that it applied Title VII, rather than the NYSHRL or NYCHRL, to the Mandate. In sum, Plaintiff argues that, accepting the facts as alleged in the complaint as true, and affording Plaintiff the benefit of every possible favorable inference, he pleaded a cause of action under both the NYSHRL and NYCHRL for failure to reasonably accommodate his sincerely held religious objections to Defendant’s COVID-19 vaccination policy. According to Plaintiff, nothing more is required at the pre-answer stage of this action. The Court will analyze Plaintiff’s two causes of action in turn. I. Plaintiff’s Cause of Action for Religious Discrimination Under the NYSHRL The NYSHRL provides, inter alia, that “[i]t shall be an unlawful discriminatory practice…[f]or an employer…because of an individual’s…creed…to discharge from employment such individual…” (Executive Law §296 [1] [a]). It further specifies that “[i]t shall be an unlawful discriminatory practice for any employer…to impose upon a person as a condition of obtaining or retaining employment…any terms or conditions that would require such person to violate or forego a sincerely held practice of her or her religion…unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee’s…sincerely held religious observance or practice without undue hardship on the conduct of the employer’s business.” (id. §296[10][a]). Plaintiff claims that he was discriminated against based on his religion when Defendant, in violation of the NYSHRL, rescinded his previously granted religious exemption to the Mandate, and terminated his employment for refusing to be vaccinated against COVID-19 According to the Court of Appeals, “[t]he standards for recovery under the [NYSHRL] are the same as the federal standards under [T]itle VII of the Civil Rights Act of 1964″ (see Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 330 n 3 [2004], citing Mittl v. New York State Div. of Human Rights, 100 NY2d 326 [2003]). Therefore, “[b]ecause both the Human Rights Law and [T]itle VII address the same type of discrimination, afford victims similar forms of redress, are textually similar and ultimately employ the same standards of recovery, federal case law in this area also proves helpful…” (id., citing Matter of Aurecchione v. New York State Div. of Human Rights, 98 NY2d 21, 26 [2002]). Furthermore, in their respective memoranda of law, the parties to this action both relied on the same legal framework, as applied by federal courts, required to make out a prima facie case under the NYSHRL. To establish a prima facie case of religious discrimination for failure to accommodate under the NYSHRL, a plaintiff employee must show that “(1) they held a bona fide religious belief conflicting with an employment requirement; (2) they informed their employer of this belief; and (3) they were disciplined for failure to comply with the conflicting employment requirement” (Knight v. Connecticut Dept. of Pub. Health, 275 F3d 156, 167 [2d Cir 2001]; Baker v. Home Depot, 445 F3d 541, 546 [2d Cir 2006]). If the plaintiff establishes a prima facie case, the burden then shifts to defendant employer to show it could not reasonably accommodate the plaintiff’s religious beliefs without suffering an undue hardship” (id.). Plaintiff, in his complaint, alleged that he holds sincere religious beliefs that prevent him from receiving a vaccination against COVID-19 and applied for a religious exemption to Defendant’s vaccination policy upon its announcement. As part of that process, Plaintiff alleged, Defendant required that he fill out a questionnaire wherein he provided a detailed explanation of his Christian beliefs and how they conflict with the COVID-19 vaccine. According to the complaint, Defendant approved Plaintiff’s religious exemption and he was required to follow a testing and masking protocol in lieu of vaccination. Plaintiff further alleged that Defendant subsequently rescinded all religious exemptions and, after an unsuccessful appeal to the employer’s human resources department, he suffered compensable harm. The Court finds Plaintiff’s allegations sufficient to make out a prima facie case of unlawful religious discrimination for failure to accommodate under the NYSHRL. In its motion, Defendant does not dispute that Plaintiff has plausibly alleged the necessary prima facie elements of a failure- to-accommodate claim. Consequently, the Court must now determine whether Defendant establishes, as a matter of law, that it could not reasonably accommodate Plaintiff without suffering an undue hardship. The NYSHRL defines “undue hardship” as a “significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system)” (Executive Law §296 [10] [d]). Defendant points out that, although not expressly provided for in the Mandate, it nevertheless accepted requests for religious exemptions until DOH clarified that religious exemptions were impermissible. It is undisputed that Defendant engaged in the interactive process with Plaintiff and granted him a religious exemption until DOH, in November 2021, directed that covered entities were to ensure that any personnel previously granted a religious exemption must be vaccinated against COVID-19 before being permitted to work. DOH’s directive, expressly prohibiting Defendant from granting religious exemptions from the Mandate’s vaccination requirement, followed the We The Patriots decision. In that decision, the Second Circuit ruled that the Mandate “does not require employers to violate Title VII because, although it bars an employer from granting a religious exemption from the vaccination requirement, it does not prevent employees from seeking a religious accommodation allowing them to continue working consistent with the [r]ule.” (see We The Patriots USA, Inc., 17 F4th at 292). The Second Circuit later clarified that a reasonable religious accommodation is permissible under the Mandate only if the employer removes the employee from the Mandate’s definition of covered personnel, but that employers may not grant religious accommodations that allow covered personnel to continue working unvaccinated in positions within the scope of the Mandate (see We The Patriots USA, Inc., 17 F4th at 370). It is uncontested that when Defendant informed employees of the policy change, as directed by DOH and in accordance with the Second Circuit’s ruling, Defendant advised that it could not approve any religious exemptions, as doing so would cause it an undue burden, and that compliance with the DOH’s directives was deemed mandatory. Upon reading the complaint, and opposition to the instant motion, it is clear that Plaintiff asserted only that Defendant should have allowed him to continue working unvaccinated, in direct contact with patients and staff, while following the safety precautions in place before his religious exemption was rescinded. Although Plaintiff has used the terms “accommodation” and “exemption” interchangeably throughout his papers, it is important to clarify that Plaintiff did not allege that he, at any point, requested an alternative religious accommodation, such as remote work, and sought only a religious exemption from the Mandate’s vaccination policy. Furthermore, Plaintiff conceded that his position at the hospital was within the Mandate’s definition of “covered personnel”, and it was the intent of the regulation to prohibit religious exemptions except for employees who could work fully remotely and, therefore, fall outside the definition of “covered personnel”. Thus, Defendant claims that Plaintiff’s proposed religious accommodation, an exemption to the Mandate’s vaccination requirement, posed an undue hardship as a matter of law because it would have required Defendant to violate a binding state regulation and face potential penalties as a result. The Court will not address Defendant’s claim that Plaintiff’s proposed religious accommodation would pose an undue hardship as it would have risked the health and safety of patients, employees, and visitors because, regardless, letting the Plaintiff work while unvaccinated would have required Defendant to violate the Mandate. However, the Court will note that Defendant, in its recitation of the facts, did not cite any undue hardship in the form of safety risks to patients or staff at the time Defendant granted the initial religious accommodation. The alternative safety protocol Defendant developed as an accommodation was deemed adequate to mitigate the risk of infection and spread. To support its position, Defendant cites several recent federal district court rulings dismissing similar failure-to-accommodate claims against hospitals under NYSHRL, which this Court referred to as persuasive authority on the state law claims (Corrales v. Montefiore Med. Ctr., 2023 WL 2711415 [SD NY 2023]; Algarin v. NYC Health + Hosps. Corp., 2023 WL 4157164 [SD NY 2023], affd 2024 WL 1107481 [2d Cir 2024]; Mace v. Crouse Health Hosp., Inc., 2023 WL 5049465 [ND NY 2023]; Marte v. Montefiore Med. Ctr., 2022 WL 7059182 [SD NY 2022]). In response to Defendant’s undue hardship claims, Plaintiff argued that (a) the Mandate is ultra vires and void ab initio; (b) DOH exceeded its authority in prohibiting religious exemptions to the vaccination requirement; (c) Defendant’s claim that it would have faced penalties for violating the Mandate is hypothetical and speculative; (d) We The Patriots was incorrectly decided and inapplicable to NYSHRL claims; and (e) Defendant’s undue hardship defense cannot be established as a matter of law. The Court carefully considered each of Plaintiff’s arguments and will discuss them in turn. (a) Plaintiff claims that the Mandate was ultra vires and void ab initio. In support of his claim that the Mandate was void and unenforceable at its inception, Plaintiff cited a trial court decision that struck down the Mandate’s vaccination requirement on the ground that DOH exceeded its statutory authority by imposing a mandatory immunization policy (Medical Professionals for Informed Consent v. Bassett, 78 Misc3d 482 [Sup Ct, Onondaga County 2023]). Plaintiff also cited a subsequent trial court decision which reinstated a nurse and vacated an arbitration decision that upheld her termination on similar grounds (Cooper v. Roswell Park Comprehensive Cancer Ctr., 81 Misc3d 324 [Sup Ct, Erie County 2023]). The Court does not find the rulings in Bassett or Cooper to be relevant to this action, as both were decided well after November of 2021 when Defendant effectuated its vaccination policy to comply with DOH’s clarified directive and terminated Plaintiff’s employment (see Algarin, 2023 WL 4157164 at 9). Plaintiff has alleged no facts to the contrary. Even the eventual repeal of the Mandate in 2023 does not change the Court’s analysis that it was valid at the time relevant to this case. Moreover, enforcement of the Bassett decision was stayed pending appeal. Defendant could not have looked to these cases in evaluating how to proceed with respect to Plaintiff’s employment. As a matter of public policy, employers should not be required to “accurately predict the outcome of litigation in order to avoid liability for discrimination on the one hand, or [take on] liability for violating state law on the other” (see Dennison v. Bon Secours Charity Health Sys. Med. Group, P.C., 2023 WL 3467143, 8 n 5 [SD NY 2023]). (b) Plaintiff claims that DOH exceeded its authority in prohibiting religious exemptions to the vaccination requirement. Plaintiff argues that, even assuming arguendo that the Mandate’s vaccination requirement was valid, DOH does not have the authority to prohibit religious exemptions which employees are entitled to under the NYSHRL. Therefore, according to Plaintiff, “it was patently unreasonable for Defendant to believe that the DOH also has authority to annul the state and city human rights laws with respect to reasonable religious accommodations.” Plaintiff further argued that, because the Mandate and NYSHRL conflict, Defendant should have granted him a religious exemption in violation of the Mandate given that statutes prevail over regulations. The Court disagrees. Defendant, a private hospital regulated by DOH, did not have the discretion to grant religious exemptions after doing so was expressly prohibited. As a general matter, covered entities do not have the authority to decide which regulations they will or will not comply with based on their individual legal interpretations. The determination of whether DOH had the authority to prohibit religious exemptions to its Mandate is squarely within the purview of the courts, not regulated entities. Furthermore, there have been several recent federal district court decisions dismissing challenges to the Mandate’s vaccination requirement under the NYSHRL (Corrales, 2023 WL 2711415; Algarin, 2023 WL 4157164, affd 2024 WL 1107481; Mace, 2023 WL 5049465; Marte, 2022 WL 7059182). Even if Defendant opposed the Mandate and agreed with Plaintiff’s legal conclusion that it violated employees’ statutory right to a religious exemption under NYSHRL, it was still bound, as a covered entity, to comply with the Mandate while it was in effect. Moreover, even if Defendant aggressively pursued legal action or engaged in advocacy to preserve its right to grant religious exemptions to its employees, it would still have been required to rescind the religious exemption granted to Plaintiff in order to avoid the risk of sanctions and other penalties for non- compliance. Plaintiff’s characterizations of what a reasonable or responsible employer would have done are conclusory statements which are unsupported by any facts alleged in the complaint. (c) Plaintiff claims that the risk of penalties for violating the Mandate is hypothetical and speculative. In support of its undue hardship argument, Defendant claimed that the Mandate was enforceable under various sections of the New York Public Health Law, and that non-compliance could result in pecuniary penalties and revocation of its operating license (Public Health Law §§12 [1] [a]; 2806 [1] [a]). In response, Plaintiff argued that there is no evidence that DOH ever penalized covered entities for granting religious exemptions in violation of the Mandate, or that Defendant faced an actual risk of legal consequences for non-compliance. Plaintiff cited several cases proffered to stand for the basic principle that a hardship cannot be hypothetical or speculative, but must be substantiated by evidence that the employer faced an actual hardship (Philbrook v. Ansonia Bd. of Educ., 757 F2d 476, 484 [2d Cir 1985]; Shane v. Bio-Techne Corp., 2023 WL 3936638, 4 [D Minn 2023]; Rolovich v. Washington State Univ., 2023 WL 3733894 [ED Wash 2023]). Plaintiff further posited that “[i]n the event DOH cited Defendant for allowing [Plaintiff's] religious exemption, Defendant’s own capable lawyers would have argued that DOH lacked authority to prohibit religious exemptions in contravention of the state and city human rights laws and, therefore, had no authority to sanction Defendant for complying with these statutes. They would have won their argument.” The Court finds, based on its reading of the Public Health Law, that Defendant faced potential fines and risk to its operating license for violating the Mandate. There is nothing speculative or hypothetical about enforcement provisions that very clearly delineate the legal consequences for violating health laws and regulations. The request of a religious accommodation that, if granted, subjects the employer to the risk of a regulatory enforcement action, is plainly within NYSHRL’s definition of undue hardship. Plaintiff’s argument that DOH has never penalized covered entities for granting religious exemptions is irrelevant. This Court is careful not to set a precedent that will allow regulated entities to violate rules and regulations under the cover of avoiding civil liability. Furthermore, it is unreasonable to suggest that before complying with a state regulation, an employer should violate it in order to gauge the enforcement response. Finally, Plaintiff’s claim that Defendant’s lawyers would have prevailed in a challenge against an enforcement action by DOH is belied by numerous federal court rulings (Corrales, 2023 WL 2711415; Algarin, 2023 WL 4157164, affd 2024 WL 1107481; Mace, 2023 WL 5049465; Marte, 2022 WL 7059182; Dennison, 2023 WL 3467143; Riley v. New York City Health and Hosps. Corp., 2023 WL 2118073 [SD NY 2023]). The risk that the employer may have to engage in costly legal or regulatory proceedings to defend against an enforcement action is, in and of itself, an undue hardship, even if the employer is likely to prevail. (d) Plaintiff claims that We The Patriots was incorrectly decided and inapplicable to NYSHRL claims. Plaintiff argued that Defendant’s reliance on We The Patriots was improper because the decision was flawed and applied only to challenges to the Mandate under Title VII. Plaintiff further argued that, consequently, Defendant wrongfully concluded that DOH had the authority to prohibit religious exemptions to the Mandate’s vaccination requirement under the NYSHRL. This Court does not consider We the Patriots solely for its legal conclusions, but also as part of the fact pattern, as alleged in the complaint, of what occurred at or around the time the employment action was taken by Defendant. Furthermore, Defendant’s reliance on We the Patriots and its progeny is not an indication that it agreed with the rulings, but rather substantiates Defendant’s conclusion that the Mandate’s prohibition on blanket religious exemptions was enforceable, and that compliance was mandatory. It is important to note that, according to the complaint, it was DOH that directed Defendant and other covered entities to rescind religious exemptions. Defendant was not unilaterally executing a legal strategy or making policy based on its interpretation of federal rulings, but complying with a mandatory directive promulgated by a state regulatory agency. In fact, several federal court decisions, issued after Defendant’s employment action concerning Plaintiff, dismissed challenges against the Mandate brought under NYSHRL and/or NYCHRL in addition to Title VII claims (Corrales, 2023 WL 2711415; Algarin, 2023 WL 4157164, affd 2024 WL 1107481; Mace, 2023 WL 5049465; Marte, 2022 WL 7059182). Moreover, Plaintiff did not cite any federal or state rulings wherein the Court found that the Mandate violated or conflicted with the NYSHRL or NYCHRL. (e) Plaintiff claims that Defendant’s undue hardship defense cannot be established as a matter of law. Plaintiff argued that, because he makes out a plausible prima facie case of religious discrimination for failure to accommodate his sincerely held religious beliefs under the NYSHRL, Defendant’s motion to dismiss must be denied. To support his argument, Plaintiff cited caselaw wherein the court found that Defendant’s undue hardship defense required a fact-specific inquiry (Genesee Hospital v. State Div. of Human Rights, 50 NY2d 917 [1980]; State Div. of Human Rights v. Carnation Co., 42 NY2d 873 [1977]; Groff v. DeJoy, 600 US 447 [2023]); Johnson v. St. Charles Health Sys., Inc., 2023 WL 5155591 [D Or 2023]; Lee v. Seasons Hospice, 2023 WL 6387794 [D Minn 2023]; Philbrook, 757 F2d 476; Shane, 2023 WL 3936638; Rolovich, 2023 WL 3733894). Plaintiff further argued that, although Defendant can establish its undue hardship defense on summary judgment or at trial, it cannot do so on a motion to dismiss. The Court disagrees. Plaintiff’s NYSHRL claim cannot succeed under the facts alleged in the complaint. The only means by which Defendant could provide the religious accommodation requested by Plaintiff would require the violation of a binding state regulation, which would cause Defendant to suffer an undue hardship as a matter of law. The facts of the instant case are distinguishable from the cases cited by Plaintiff, as Defendant, here, did not reason that it would suffer increased costs, decreased productivity, or an administrative burden. Furthermore, the religious accommodations sought by the defendants in the cases cited do not require the employers to violate rules and regulations promulgated by a government agency. In fact, among Plaintiff’s citations is a federal district court ruling which held that the undue hardship defense cannot be resolved at the pleading stage (Shane, 2023 WL 3936638). In that case, the court specifically distinguished the facts from another case involving the Mandate, which was conversely dismissed based upon the undue hardship defense (id.). A religious accommodation that requires an employer to violate a state regulation is an obvious bar to securing relief on the face of the complaint (see Rolovich, 2023 WL 3733894, citing Bolden-Hardge v. Off. of California State Controller, 63 F4th 1215 [9th Cir 2023]). Therefore, the Court finds that Defendant has established that Plaintiff’s proposed religious accommodation, an exemption to the Mandate’s vaccination requirement, posed an undue hardship as a matter of law. For these reasons, Plaintiff’s NYSHRL claim will be dismissed with prejudice. II. Plaintiff’s Cause of Action for Religious Discrimination in violation of the NYCHRL The NYCHRL provides that “[i]t shall be an unlawful discriminatory practice…[f]or an employer…because of the actual or perceived…creed…of any person…[t]o discharge from employment such person” (NYC Admin Code §8-107 [1] [a] [2]). It further provides that, “[i]t shall be an unlawful discriminatory practice for an employer…to impose upon a person as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such person to violate, or forego a practice of, such person’s creed or religion…and the employer shall make reasonable accommodation to the religious needs of such person (id. §8- 107 [3] [a]). Under the NYCHRL, a reasonable accommodation is an “accommodation to an employee’s…religious observance or practice as shall not cause undue hardship in the conduct of the employer’s business” (id. §8-107 [3] [b]). As the provisions of the NYCHRL mirror the provisions of the NYSHRL, they should be analyzed according to the same standards (see Forrest, 3 NY3d at 330). Therefore, to make out a prima facie case, the plaintiff must prove that, “(1) he has a bona fide religious belief that conflicts with an employment requirement, (2) he informed the employer of the belief, and (3) he was disciplined for failure to comply with the requirement” (see Corrales, 2023 WL 2711415, 8, citing White v. Andy Frain Services, Inc., 629 Fed Appx 131, 133 [2d Cir 2015]). Once the plaintiff has made a prima facie case, the burden of proof shifts to the employer to show that it could not reasonably accommodate the plaintiff’s religious beliefs without causing an undue hardship in the conduct of its business (NYC Admin Code §8-107 [3]). Although the prima facie elements of “failure-to-accommodate” claims are essentially the same under the NYSHRL and NYCHRL, it is well-established that NYCHRL claims must be evaluated separately from state and federal claims, and it provisions construed more liberally in favor of the plaintiffs (see Algarin, 2023 WL 4157164, 10, citing Owens v. City of New York Dept. of Educ., 2022 WL 17844279, 2 [2d Cir 2022]; see also Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102 [2d Cir 2013]). The Court will analyze the NYCHRL cause of action under a similar standard it applied to the NYSHRL cause of action. However, in line with Algarin and Owens, the NYCHRL claim will be evaluated separately and more liberally, with its provisions construed broadly and in favor of Plaintiff. As already determined herein, Plaintiff plausibly established a prima facie case for failure to accommodate his sincerely held religious beliefs. Therefore, the inquiry turns to the question of undue hardship. “Undue hardship” is defined as “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system)” (NYC Admin Code §8-107 [3] [b]). Plaintiff raises the same arguments against Defendant’s undue hardship defense under NYCHRL as he did under NYSHRL. The only means by which Defendant could provide the religious accommodation requested by Plaintiff would require it to violate a binding state regulation and face potential penalties, which would cause Defendant to suffer an undue hardship as a matter of law. Despite applying a more liberal construal, Plaintiff’s NYCHRL claim cannot succeed under the facts alleged in the complaint. The NYCHRL, like the NYSHRL, does not require providing religious accommodations that would force an employer to violate rules and regulations promulgated by a government agency. For these reasons, Plaintiff’s NYCHRL claim is DISMISSED with prejudice. Decision and Order Even though Plaintiff alleged facts that could establish a prima facie case for religious discrimination by failure to accommodate under the NYSHRL and NYCHRL, it would be impossible for Plaintiff to succeed in his two causes action. Plaintiff’s only proposed religious accommodation — an exemption from the Mandate’s vaccination requirement — would cause Defendant to suffer an undue hardship as a matter of law. Accordingly, the first and second counts of the complaint must be dismissed. In its reply memorandum, Defendant argued that Plaintiff’s claims would be more appropriately levied against the state agency that promulgated the Mandate, rather than a private institution subject to that agency’s regulatory authority. The Court agrees. During oral argument, Defendant supported its claim that compliance with the Mandate’s vaccination requirement was deemed mandatory by averring that it did not want to fire valuable medical personnel amidst the COVID-19 pandemic. It is certainly notable, if not alarming, that a regulatory agency would promulgate a rule that in effect would reduce the operational capacities of hospitals and health care providers across the state amidst an unprecedented public health emergency. Moreover, it is unclear why it was necessary to override the professional judgments of hospital administrators and front-line healthcare workers in the deployment of alternative safety protocols developed to accommodate employees with religious objections to the COVID-19 vaccine. Nevertheless, as a matter of public policy, private employers cannot be used as proxies for challenging the actions of government agencies. The facts alleged in Plaintiff’s complaint provide no legal basis for relief. Therefore, the Court will grant Defendant’s motion to dismiss this action. Accordingly, it is hereby ORDERED that Defendant’s motion to dismiss pursuant to CPLR §3211 (a) (7) for failing to state a cause of action is GRANTED, and Plaintiff’s complaint is hereby dismissed with prejudice. Any items of relief sought by the motion that are not addressed herein are deemed to be DENIED. Dated: April 11, 2024
