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Litigation Trends Analysis

November 16, 2021

Employment Vaccine Mandates

The Biden Administration directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule requiring all employers with 100+ employees to mandate their employees be vaccinated or undergo weekly COVID-19 testing, and on November 4, 2021, the Administration announced further details on the policy. The implications of this rule are widespread. Companies falling under the 100+ employee umbrella are evaluating best practices to implement the rule while also shielding themselves from potential lawsuits brought by their employees.

While the law allows for such public safety measures, lawsuits challenging the vaccine mandates have already begun to crop up. Though many of these lawsuits are pending, few have been resolved, and there are no definitive appellate court rulings at this point to provide guidance to trial courts. The United States Court of Appeals for the Fifth Circuit recently issued a ruling temporarily halting the vaccine mandate for businesses with 100 employees or more. The ruling came after Texas Attorney General Ken Paxton filed a challenge to the mandate. The Fifth Circuit ruled that there are “grave statutory and constitutional issues” with the OSHA mandate. 

Ten states—Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire—sued the Biden Administration last week, arguing that the vaccine mandate is unconstitutional and unlawful. In Colorado, a public school teacher, Benjamin Helgeson, sued a school after being told that he could be exempt from the district’s vaccine mandate due to his religious beliefs, but then the district recanted and placed him on unpaid leave. In New York, a police union filed a lawsuit against a vaccine mandate for municipal workers ordered by Mayor Bill de Blasio, arguing that they should have the opportunity to choose whether to get the vaccine. In Arizona, a nurse at Phoenix Children’s Hospital, Alexandra Bosin, brought a class action against the hospital for disclosing that she and others had exemptions to the COVID-19 vaccine mandate.

A federal judge in Chicago, Illinois issued a temporary restraining order preventing NorthShore University HealthSystem from placing 14 of its employees on unpaid leave. The employees were granted religious exemptions to the vaccine mandate, but were forced to go on leave, using up their limited paid time off and facing termination if they did not get vaccinated by the end of the year. U.S. District Judge John Kness said during his ruling: “They can’t be fired and they can’t be placed on what is effectively, in my mind, unpaid leave. The hospital’s going to have to keep paying them. If you wish to require them to show up to work and use PPE and go through testing because you need the help and you don’t want to pay them to be off site, that’s up to the hospital.” (Jane Does 1-14 v. NorthShore University HealthSystem, USDC Northern District of Illinois, Case No. 1:21cv5683).

As we implement the policies outlined in the new OSHA rule mandating vaccination among 100+ employers, human resource leaders are preparing to combat pushback in the workplace. We expect more lawsuits claiming employment and religious discrimination in the coming months.  

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