Examining the Current State of Vaccine Mandates

As Covid vaccine mandates continue to envelop both employers’ and employees’ minds, plaintiffs across the country have filed several lawsuits that represent supporters’ and challengers’ views on vaccine mandates in the workplace. The claims include allegations against federal, state, and local mandates, as well as private employer vaccine mandates. Here’s what’s been happening:

Federal Mandates and Litigation

On Sept. 9, President Biden announced that federal employees would be required to attest to their vaccination status, and any federal employee who does not attest and/or is unvaccinated will be required to mask, submit to weekly testing, socially distance, and otherwise not travel for work. 

Additionally, President Biden directed OSHA to issue a vaccine mandate for private employers with 100 or more employees ensuring that the respective workforce is either vaccinated or tested weekly. As a result, lawsuits were filed challenging the mandates on public employees and private employees of covered employers. 

One NLRB Regional Attorney filed suit, in his capacity as a federal employee, against President Biden in the Northern District of Texas on Sept. 29, seeking a declaratory judgment and injunctive relief. In the complaint, the employee alleges that the mandate requiring vaccination for federal employees violates the First Amendment and Due Process Clause of the Fifth Amendment. 

The Court denied the employee’s request for an injunction and also required the employee to explain why the case should not be dismissed. On Oct. 13, the plaintiff filed that response stating that the mandate violates the Substantive Due Process and Equal Protection clauses. The court has yet to rule on the response. 

Meanwhile, the Attorney General of Arizona also filed suit against President Biden, focusing on the mandate requirements imposed on both federal employees and private employees working for covered employers. The Attorney General requests declaratory relief alleging that unauthorized individuals entering the U.S. do not have the same vaccine requirements as U.S. citizens/lawful permanent residents. The mandate therefore favors unauthorized individuals over U.S. citizens and consequently violates the Equal Protection Clause. There has been no further activity in the case. 

State Mandates and Litigation

States have taken various approaches to addressing Covid vaccine mandates. Some have bans on vaccine mandates or the requirement of Covid documentation, others have vaccination requirements only within the healthcare industry, and some require vaccination or weekly testing. 

For example, in August, the Governor of Washington issued a vaccine mandate requiring state workers and private healthcare workers (among other defined groups) to be vaccinated by Oct. 18. As a result, several state employees filed suit in the Western District of Washington against Governor Inslee and other state officials alleging that the Governor’s vaccine mandate violates the ADA and Title VII (among other claims). 

Specifically, the Washington employees allege that:

  1. The medical accommodation requests are being granted at a higher rate than religious accommodation requests;
  2. People of color are being disproportionately impacted by the mandate;
  3. The religious exemption questionnaire infringes on privacy rights; and
  4. Previous accommodation requests are no longer being accommodated.

The court held a hearing on Oct. 15, but has yet to rule. 

On the other hand, one New York court recently enjoined the New York State Department of Health’s vaccine mandate for healthcare workers because the mandate did not provide for religious exemptions. This ruling shows that while courts are generally denying challenges to mandates, they will not uphold mandates that do not provide or account for certain legal requirements.

State Bans

Other states have banned Covid documentation requirements and vaccine mandates. For instance, Texas Governor Abbott recently issued an executive order that prevents vaccine mandates and requires employers to accommodate an employee’s religious belief and/or medical condition as well as providing exemptions based on an employee’s “personal conscience.” 

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Not long after Governor Abbott issued the ban, the Texas legislature adjourned without passing legislation leaving the order in effect. 

Additionally, Florida Governor DeSantis (after the state passed legislation banning a business entity’s ability to require Covid documentation) has repeatedly shown efforts to pass state legislation banning vaccine mandates. 

Caution: OSHA’s Emergency Temporary Standard (“ETS”), when published, may preempt state laws banning vaccine mandates. As we await this, employers should be aware that these state bans on vaccine mandates may in fact be preempted by the federal regulations. Employers should therefore take caution in making drastic policy changes. They should also prepare to address employee concerns on both sides of this issue as the process unfolds. 

Private Employer Bans

Several large-scale employers recently implemented a vaccine mandate for employees. In response, some employees have filed suit against the mandates. Similar to the lawsuits brought against state mandates relating to public employees, the courts generally enforce the mandates provided the mandates account for certain legal requirements, specifically medical and religious accommodations.

Tomorrow’s Reality

Through the muck, it remains clear that courts are frequently upholding vaccine mandates (except where the mandates do not account for certain legally required accommodation obligations), and therefore employers and employees need to adjust to the new reality of mandatory vaccinations or weekly testing in the workplace. 

As we anxiously await OSHA’s ETS, which will hopefully provide clarity on President Biden’s vaccine mandate for private employers with 100 or more employees, it is also evident that employers should continue to monitor legal developments on the federal, state, and local level as well as consult with counsel before implementing any changes in policies on vaccinations, Covid documentation, testing, etc. 

Lastly, it’s worth pointing out that this cautionary tale applies to private employers with fewer than 100 employees, as vaccine mandate regulations may eventually enter their realm. 

Brooke C. Bahlinger is a litigation associate with Foley & Lardner LLP. Brooke is based in the firm’s Dallas office where she is a member of the firm’s Labor and Employment Practice.

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