Seyfarth Synopsis: On the eve of Thanksgiving, the Supreme Court granted various religious groups' request to temporarily block enforcement of an Executive Order issued by the Governor of New York that imposes occupancy restrictions on religious services in areas classified as “red” or “orange” zones while the groups pursue appellate review.  As the holiday season is approaching, coupled with the possibility of employees attending in-person religious services, employers will have to balance keeping their workspaces safe, a litany of fast-changing restrictions, and the risk of monitoring employee behavior outside the workplace.

The Micro-Cluster Strategy

On October 6, Governor Cuomo issued Executive Order 202.68, which established New York's COVID-19 Micro-Cluster Strategy.  Under this initiative, the Governor has the ability to classify certain areas throughout the state as “yellow,” “orange,” or “red zones” based on the positivity rate. A high level summary of the Order is as follows:

  • In a yellow zone, businesses can remain open, but houses of worship are capped at 50% of maximum capacity.
  • In an orange zone, certain high-risk non-essential businesses (gyms, fitness centers and classes, barber shops, hair salons, personal care services) are closed, but houses of worship are capped at the lesser of 33% of maximum capacity or 25 people.
  • In a red zone, non-essential business must close, but houses of worship are capped at the lesser of 25% of maximum capacity or 10 people.

For a map of the cluster zones, please visit the following link.

Litigation by Religious Groups

Religious groups challenged Executive Order 202.68 as a violation of the Free Exercise Clause of the First Amendment.  The District Court denied the motion for a preliminary injunction against the enforcement of the Order.  On appeal, the U.S. Court of Appeals for the Second Circuit denied the motion for injunction pending appeal. Religious groups then filed an emergency application and the Supreme Court agreed that the applicants established their entitlement to injunctive relief pending appellate review.

The Court noted that the Executive Order was not neutral because it “single[s] out houses of worship for especially harsh treatment.”  In a red zone, a house of worship is capped at 10 people, but no similar restriction applies to an “essential business.”  Thus, according to the Court, the Executive Order was subject to “strict scrutiny,” the most rigorous constitutional test, and the Order did not pass the test.  The Court also found that there was no evidence that the applicants contributed to the spread of COVID–19, and there were other less restrictive rules that could have been adopted to minimize the risk to those attending religious services.

Impact on Employers

Unlike houses of worship, employers are not immediately impacted by the Supreme Court's ruling.  Still, employers need to be cognizant of the tension they face in keeping their workplaces safe, while not inadvertently violating other laws by monitoring employee behavior outside the workplace or asking screening questions related to such behavior, especially during the holiday season.  Currently, the New York COVID-19 Reopening Guidance allows employers to provide additional precautions or increased restrictions, but employers should be aware of competing legal considerations.  This includes Title VII, the New York State Human Rights law, and the New York City Human Rights law's protections prohibiting discrimination and harassment based on religious beliefs.  It similarly implicates New York State's off-duty conduct law, as set forth in New York Labor Law Section 201-d, which prohibits employers from discriminating against an individual because of their legal recreational activities outside of working hours and off the employer's premises.  While it is true that Section 201-d allows an employer to consider off-duty conduct  based on the belief that certain action is required by regulation, ordinance or other governmental mandate or because the individual's actions were deemed by the employer to be illegal or to constitute misconduct, it is most likely not the case that an employee violating current executive orders limiting religious gatherings would expose themselves to legitimate workplace scrutiny for their actions.  Although there are some potential exceptions, off duty religious, political, social media and similar conduct that may demonstrate an employee has run afoul of an executive order are usually tricky topics for an employer to consider for workplace discipline.

Supreme Court Signals?

Whether the Supreme Court's recent decision opens the door to additional challenges of executive orders across the country, remains to be seen.  Indeed, this decision may signal a new willingness by the Supreme Court to weigh in on public health-related restrictions, and perhaps will cause government to more tightly tailor restrictions in anticipation of increased legal challenges to arguably over-broad restrictions.  Because so many of the restrictions to date have been cobbled together by a state's executive branch at lightning speed, and perhaps without sufficient inspection or introspection, it may be quite difficult for states to argue effectively that their executive orders limiting certain constitutionally protected rights have been narrowly tailored in a fashion that will survive strict scrutiny. 

As we have done throughout the pandemic, Seyfarth is available to assist employers with their workplace safety strategies during the pandemic and during the holiday season.

Originally Published by Seyfarth Shaw, November 2020

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