Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGIOUS—7th Cir.: Health care employees waived as-applied free exercise challenge to COVID vax policy, (May 20, 2025)

By Tulay Turan, J.D.

An as-applied challenge invites narrower, retrospective relief, such as damages.

Affirming the district court’s decision to dismiss Cook County, Illinois health care employees’ First Amendment Free Exercise claims, the Seventh Circuit held they waived their as-applied challenge to the county’s COVID-19 vaccination policy. In the lawsuit’s journey through both the district and appellate courts, the employees advocated for, and the courts have considered, only a facial challenge to the constitutionality of the policy. In addition, the employees conceded they did not seek injunctive relief and no longer raised a facial challenge on appeal (Lukaszczyk v. Cook County, No. 24-1381 (7th Cir. May 19, 2025)).

The employees worked as health care employees or contractors at Cook County, Illinois facilities. In August 2021, Cook County Health and Hospital Systems issued a mandatory COVID-19 vaccination policy.

The employees requested a religious exemption from the policy. Their requests were granted, but the “accommodation” was a transfer to unpaid status pending termination, and a grant of a limited amount of time to find a remote position, which did not exist. At the same time, the County granted requests for accommodations for non-religious reasons, which the employees believed was religious discrimination in violation of the Free Exercise Clause of the First Amendment.

Previous proceedings. The employees brought First Amendment Free Exercise Clause claims against Cook County. The appellate court previously affirmed denial of their motions for preliminary injunctions against state and local COVID-19 vaccine mandates, including Cook County’s. Among the court’s rulings was a denial of the employees’ free exercise facial challenge to the mandate.

On remand, the employees sought and were granted permission to amend their complaint. Before that second amended complaint could be responded to, they moved to amend their complaint a third time to include a claim under the Illinois Religious Freedom Restoration Act. The district court denied the motion.

Motion to dismiss granted. The County moved to dismiss the second amended complaint, contending the employees had failed to state a viable First Amendment claim either on its face or as applied. The employees responded that their claim should not be dismissed, but they did not specify the type of challenge they had brought.

The district court considered their claim as a facial challenge to the policy and granted the motion to dismiss for failure to state a claim. The court reasoned that after remand, the employees’ amendment added no new factual allegations. Only a facial challenge remained, which the appeals court had already ruled did not show a violation of the employees’ right to freely exercise their religions.

Issue on appeal. Only the employees’ free exercise claim remains against Cook County. The employees appeal the district court’s dismissal of their constitutional claim.

As-applied challenge waived. Affirming the district court’s decision to dismiss the employees’ free exercise claim, the appellate court held they waived their as-applied challenge to the County’s vaccination policy.

The court explained that a facial challenge usually invites prospective relief, such as an injunction, while an as-applied challenge invites narrower, retrospective relief, such as damages.

In this case’s journey through the district and appellate courts, the employees have advocated, the County has responded to, and the courts have considered only a facial challenge to the constitutionality of the vaccination policy. The paragraphs introduced in their second amended complaint failed to transform their requested relief. In their various complaints, the employees had not abandoned their request for injunctive or declaratory relief to limit their prayer for relief to damages.

The court found they failed to pursue the as-applied challenge in the district court and failed to raise it in their opening brief in this appeal. The employees first raised an as-applied challenge in their final brief before this court. An issue not presented to the district court may not be raised on appeal, the court ruled.

In addition, the employees conceded they did not seek injunctive relief and no longer raised a facial challenge. “This waiver plus concession ends [the employees’] constitutional claim,” the court wrote.

Leave to amend. The court also affirmed the district court’s denial of leave to amend the complaint to include an Illinois RFRA claim. The district court was not at fault where it reasonably deferred any further amendment of the pleadings until it could rule on an upcoming motion to dismiss a just-amended complaint.

The case is No. 24-1381.

Judge: Brennan, M.

Attorneys: Jonathan Lubin (Law Office of Jonathan Lubin) for Barbara Lukaszczyk. Jonathon D. Byrer, Office of the Cook County State's Attorney, for Cook County.

Companies: Cook County

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