In September 2024, the U.S. District Court for the Eastern District of New York dismissed a lawsuit brought by dozens of former New York City employees who had refused to comply with the City’s COVID-19 vaccine mandate. Now on appeal, the case before the U.S. Court of Appeals for the Second Circuit combines questions of federal preemption, workplace safety law, constitutional rights, and judicial ethics.
The plaintiffs, represented by a team led by attorney Jo Saint-George of the nonprofit Women of Color for Equal Justice, argue that the Occupational Safety and Health Act of 1970 (OSHA) preempts New York City’s mandate. They contend that under federal law, only the Secretary of Labor, through OSHA, has the authority to establish workplace safety standards to protect employees from airborne hazards. According to their filing, vaccines are medical treatments that affect the immune system but cannot remove viral particles from the air or shield employees from exposure. By requiring vaccination as a condition of employment, they argue, the City substituted its own workplace safety regime for the federal one, an act they claim is barred by the Supremacy Clause.
“Congress has explicitly recognized in Section 20(a)(5) that employees may not be subjected to medical treatment or immunization in violation of their religious beliefs, unless such treatment is necessary to protect the health of others.”
— Plaintiffs’ Opening Brief, Case No. 24-3252 (2d Cir.)
The plaintiffs emphasize Section 20(a)(5) of the OSH Act, which states that no provision of the Act authorizes mandatory medical treatment or immunization for those who object on religious grounds, except where necessary to protect the health or safety of others. They argue that New York’s vaccine requirement ignored this protection, effectively forcing employees to choose between their religious convictions and their livelihoods. The complaint included affidavits from employees describing their beliefs and objections, which plaintiffs say were disregarded by the district court.
A separate feature of the appeal centers on the presiding judge. The plaintiffs allege that Judge Eric Komitee should have recused himself because of past involvement with Viking Global Investors, a hedge fund that invested heavily in Moderna, and because of alleged ongoing financial interests connected to Moderna. They argue this created at least the appearance of bias, since Moderna’s vaccine was part of the mandate at issue. After the case was dismissed, the plaintiffs formally moved for Judge Komitee’s recusal under 28 U.S.C. § 455. The judge declined to step aside, and the plaintiffs then filed a judicial misconduct complaint with the Second Circuit’s Chief Judge, which remains pending.
Beyond preemption and recusal, the plaintiffs argue that Sections 11(c)(2) and 20(a)(5) of the OSH Act provide either an express or implied private right of action for employees discharged for exercising their rights. They also assert that these statutory rights are enforceable through 42 U.S.C. § 1983, the Civil Rights Act provision allowing lawsuits for violations of federal rights. As alternatives, they pleaded claims under Title VII of the Civil Rights Act, the New York City Human Rights Law, and common-law fraud.
The district court dismissed their case without addressing the preemption question. Judge Komitee found that the plaintiffs lacked sincerely held religious beliefs sufficient to warrant protection and that the OSH Act did not grant them enforceable rights in this context. The plaintiffs argue on appeal that this was both a procedural and substantive error: procedurally because preemption must be resolved first when federal supremacy is invoked, and substantively because the dismissal disregarded statutory protections and their sworn evidence of religious objections.
They also object to the standard of review applied. According to their brief, the district court evaluated their constitutional claims under rational basis review, the lowest level of judicial scrutiny. Plaintiffs contend that the proper test was either strict scrutiny, given that fundamental rights were implicated, or the statutory “necessary” test set out in the OSH Act for burdens on religious objections to medical treatment.
Central to their argument is the claim that the vaccine mandate conflicts with OSHA’s safety framework. OSHA requires employers to eliminate workplace hazards or shield employees from exposure using approved methods, such as respirators and protective equipment. Plaintiffs argue that New York’s mandate shifted the responsibility to employees themselves by requiring them to undergo a medical intervention. This, they say, represents a fundamental misapplication of workplace safety law, since the duty under the OSH Act belongs to the employer, not the employee.
The brief also raises a sanctions request. Plaintiffs assert that the City misrepresented relevant precedent in arguing that no private right of action exists under the OSH Act. They contend that prior cases cited by the City dealt with materially different contexts and should not have been applied.
Finally, the plaintiffs argue that their case should have been certified as a class action to prevent inconsistent rulings across multiple lawsuits challenging the mandate. They claim that early denial of class certification deprived them and similarly situated employees of uniform treatment under the law.
The Second Circuit will now determine whether the dismissal should stand or be reversed. The issues before it include whether the OSH Act preempts the City’s mandate, whether employees have a private right of action under the statute, whether constitutional and statutory rights were violated, and whether Judge Komitee should have recused himself after the plaintiffs’ request. A decision has not yet been scheduled.
The Conflict of Interest Argument
The plaintiffs’ strongest card may not be their statutory arguments but their challenge to judicial impartiality. The recusal statute is strict: if a judge has a financial interest in the subject matter of a case, or if a reasonable observer could doubt his impartiality, recusal is mandatory. The plaintiffs allege that Judge Komitee’s past role overseeing a $500 million Moderna investment and his alleged financial interests in the company created exactly that scenario.
Their strategy is to shift the spotlight from the divisive question of vaccine mandates to the integrity of the judicial process. They contend that even if the law ultimately disfavors their position, they are entitled to a fair hearing before a judge with no ties to the vaccine industry. The legal rule is designed to protect public confidence: if justice does not appear impartial, it risks losing legitimacy.
The plaintiffs’ gamble is that the appeals court will focus less on the merits of preemption and more on the fairness of the process. If the Second Circuit agrees that Judge Komitee should have stepped aside, it could vacate the dismissal and assign the case to a new judge, giving the plaintiffs another chance to argue their claims on a clean slate.
Counterpoint: How the City is Likely to Respond
The City is likely to argue that the recusal motion is an overreach. Judges often come to the bench after corporate or financial careers, and prior associations do not automatically disqualify them. The statute contains an exception for diversified investments such as mutual funds, and unless plaintiffs prove a direct holding in Moderna at the time of the case, their claims may not meet the legal threshold.
The City will also stress that courts are cautious about recusal motions being used strategically. Adverse rulings do not prove bias, and to treat them as such risks encouraging judge-shopping. Accepting the plaintiffs’ theory could mean disqualifying large numbers of judges from cases involving companies commonly held in investment portfolios, which would undermine judicial stability.
Their message will be that the plaintiffs are using recusal claims to avoid the weakness of their preemption argument. The appellate court, the City will contend, should not be drawn into speculation but should decide the case on the merits of the law.
Balancing Integrity and Stability
The Second Circuit now faces a classic tension. On one side, there is the principle that justice must not only be fair but also appear fair. If Judge Komitee’s ties to Moderna were substantial enough to create an appearance of bias, then recusal was required, and the case may need to be reassigned. On the other side, the judiciary cannot function if every indirect or past connection to a company results in disqualification.
The court could take a narrow path. It may conclude that even the appearance of bias in this case justifies vacating the dismissal, without reaching the preemption question, leaving substantive issues for another judge. Or it could hold that the alleged ties fall within statutory exceptions and are too remote to compel recusal, in which case the court would turn directly to the OSHA preemption and religious liberty claims.
Either way, the Second Circuit’s handling of this appeal will not only shape the future of New York’s vaccine litigation but also set the tone for how aggressively litigants can challenge a judge’s objectivity when past financial or professional ties are alleged.
Appellate Case: WOC4EJ v. City of New York, Case No. 24-3252 (U.S. Court of Appeals for the Second Circuit)
District Court Case: Dello Ioio et al. v. City of New York et al., Case No. 1:23-cv-07559-EK-RML (U.S. District Court for the Eastern District of New York)
Case filings are available at the Women of Color For Equal Justice website:
This article does not represent legal advice or represent an endorsement or disendorsement of the case presented.