Key Vaccination Case Developments

Vaccine case law is developing rapidly on virtually a daily basis. Recent key decisions include:

Supreme Court Case Developments: On Friday, the Supreme Court continued its trend of denying emergency appeals seeking to block vaccination mandates in John Does 1-3 v. Janet T. Mills, Governor of Maine, No. 21A90. At issue—Maine healthcare workers’ religion-based challenge to state regulations requiring certain healthcare workers to receive COVID-19 vaccines. Justice Breyer denied the appeal without comment. Justices Barrett and Kavanaugh concurred, stating that emergency appeals to the Court are a grant of “extraordinary relief” that is unwarranted on issues of first impression.

Three Justices (Gorsuch, Thomas and Alito) dissented, asserting that the appeal met the standard for emergency relief. The Doe v. Mills dissent provides some insights for employers:

• The dissent was particularly concerned that Maine’s regulation contained no exemption for sincerely held religious beliefs but allowed medical exemptions;
• Other methods of compliance such as protective gear and regular testing are available to medical objectors, but not to religious objectors to the vaccine.
• While Maine has a compelling interest in protecting health and safety society-wide, it has not shown the law is the least restrictive way of achieving this interest. To reach this conclusion, the dissent took note of COVID-19 treatment advances and high hospital vaccination rates, as well as religious exemptions contained in other states’ vaccine mandates.

Other Federal Court Developments: Also on Friday, two Illinois federal court judges addressed similar injunctive relief requests—one stayed the enforcement of a vaccine mandate, and the other did not, providing further insight:

• Stay of Mandate Granted: In Does v. NorthShore University Healthsystem, 21-cv-05683, plaintiffs successfully obtained a stay of the system’s vaccination mandate program, which was scheduled to place unvaccinated workers on leave beginning November 1. Plaintiffs argued that the Illinois Health Care Right of Conscience Act, 745 ILCS 70/1, and federal prohibitions on religious discrimination supported their stay bid. The court deemed it likely that plaintiffs would prevail in their claims and deemed most relevant plaintiffs’ claims that those who sought non-religious (medical) exemptions were allowed to continue working. The court rejected the system’s arguments that amendments to the Act are pending that support vaccine mandate programs, and that the plaintiffs would not be terminated but placed on leaves of absence.

  The Court’s oral ruling indicated that no workers asserting religious objections could be placed on leave status. It also ordered preliminary injunction briefing focused on irreparable harm in the private employer context, and the potential availability of accommodations already made for medical objections. The preliminary injunction hearing is scheduled for November 16, 2021.

• Stay of Mandate Denied: Troogstad v. City of Chicago and Governor Pritzker, 21-cv-05600 reached the opposite conclusion, denying City of Chicago workers’ requests to stay Chicago’s vaccination mandate order. Relying on the Seventh Circuit’s recent decision in Klaassen v. Trustees of Indiana University, the court found states have the right to implement vaccine mandates. The court also found that the plaintiffs were not likely to succeed on the merits of their claims.

Some factors that likely influenced the decision: (1) exemptions for bona fide religious and medical exemptions were available; (2) those who choose not to be vaccinated for other reasons had the option of quitting; (3) the City provided statistics regarding the increased infection rates among City workers and unvaccinated Chicagoans overall; and (4) reporting vaccination status is similar to providing any other medical information.

Key Takeaways: While mandates are enforceable on other grounds in the public employer/government context, all employers are well-advised to be consistent when assessing medical and religious exemptions. It is also advisable to consider Illinois-based workers’ requests for religious exemptions under the Illinois Health Care Right of Conscience Act (HCRCA) while the applicability of recent amendments to the HCRCA, which are detailed below, remain in dispute. It is still the law that religious beliefs must be sincerely held and that employers may consider the undue burden of making accommodations for medical and religious reasons.

Illinois HCRCA Amendment

Last Thursday evening, the Illinois Legislature passed an amendment to the HCRCA. The change creates a new Section 70/13.5 of the Act, to allow public officials and any public or private “association, agency, corporation, entity, institution, or employer” to impose requirements “intended to prevent contraction or transmission of COVID-19.” The amendment explains that “[i]t is not a violation of this Act to enforce such measures or requirements.” The amended language will not affect an individual’s rights or remedies available under federal law. Governor Pritzker is expected to sign the bill into law shortly. As stated above, the HCRCA, which permits refusal of care on religious grounds, has been cited by plaintiffs opposing vaccine mandates, who argue such mandates violate the Act.

Federal Contractor Vaccine Mandate & Challenges

Last Thursday and Friday, Executive Order 14042 (EO 14042), which mandates COVID-19 vaccinations for federal contractors and subcontractors, was challenged on a variety of grounds by nineteen states in four separate lawsuits. The Attorney General of Missouri leads the largest number of states (10) with its EO 14042 challenge in Missouri v. Biden, 4:21-cv-01300 (E.D. Mo.). EO 14042 also contains a directive to OSHA to create emergency standards that include mandatory COVID-19 vaccination or weekly testing for many private employers.

EO 14042 broadly applies to federal contractors. Contractors on covered contracts and those who perform duties in connection with covered contracts at the same worksite must be fully vaccinated by December 8, 2021, except for those employees who are legally entitled to a medical or religious accommodation. The September 24, 2021, release of “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” further refines the mandate. Per this Guidance, EO 14042 broadly defines federal contracts and contractors, and covers three groups of employees: (1) employees working on a covered contract; (2) employees supporting a covered contract; and (3) employees working in a location in which an employee in the previous two groups is likely to visit. While EO 14042 contains a limited number of exemptions, those are very fact-specific. Covered contractors are required to adhere to the following:

• Verify vaccination through proper documentation;
• Ensure all employees and visitors comply with social distancing and masking requirements; and
• Designate a COVID-19 safety coordinator responsible for coordinating, implementing and ensuring compliance with safety protocols.

Importantly, EO 14042 does not allow for optional weekly testing in lieu of compliance. The Safer Federal Workforce Task Force has been issuing updated guidance regarding vaccination and safety protocols, scope of the guidance and compliance.

OSHA's Forthcoming Standard for Private Companies

For private employers with 100 or more employees, OSHA’s Emergency Temporary Standard (ETS) will mandate vaccination or weekly testing for their unvaccinated employees, as well as paid time off for employees to obtain their vaccinations and recover post-vaccination. As of November 1, the ETS has been reviewed by the Office of Management and Budget and is expected to be published in the Federal Register shortly. Once published, it will take immediate effect in the 29 states where OSHA has jurisdiction. The ETS will likely include specific language noting that it supersedes any state or local vaccination laws that are not as strict as the ETS. Thus, any state order like the one Texas Governor Greg Abbott issued could become largely null and void. However, during any period of time between the issuance of a state order banning COVID-19 vaccination mandates and the adoption of the ETS, employers in such states will be in limbo with respect to their vaccine policies. OSHA fines for non-compliance could be significant.