LSHRM Legislative Update: November 2021
COVID-19 Vaccine Mandate Litigation Part II
While employees across the country have attempted to block or challenge vaccine mandates throughout 2021, courts are consistently upholding such mandates, particularly in healthcare settings. For example, only days ago, the U.S. District Court for the District of Oregon declined to issue an injunction in response to an Oregon executive order requiring vaccinations for certain employees. Judge Michael H. Simon wrote that the case “presents another instance of individuals seeking to avoid the obligations imposed by a state-ordered COVID-19 vaccination mandate intended to protect the health of the community during a global pandemic.”
A federal court in Massachusetts came to a similar conclusion in a case filed by Massachusetts General Hospital employees who sought an injunction to keep the hospital from suspending those employees who refused to be vaccinated. The court held the Hospital could deny requests for medical or religious exemptions. As of October 20, 2021, the employees have been placed on leave and could be fired if they do not receive a vaccine by November 5, 2021. The judge noted at the hearing, “While of course plaintiffs will suffer harm, we are in the midst of a pandemic that has lasted for a year and a half at least, that has killed 700,000 Americans, which is…getting toward double the number of American deaths in World War II. And we are up to 12- to 15-times the casualties of the Vietnam War. Millions of others have been infected and have long-term consequences.” The judge further reasoned that any harm experienced by those employees who were unwilling (as opposed to medically unable) to get vaccinated was simply “the consequences of living with one’s choices.”
In yet another recent case, a federal court in Colorado denied a plaintiff’s request for a preliminary injunction to prevent her employer, United Airlines, from placing her on unpaid leave after she refused to get vaccinated due to her religious beliefs. Specifically, the plaintiff contended “that her sincerely held Christian faith prevents her from taking the COVID-19 vaccine.” After requesting a religious exemption, United informed the plaintiff she would be placed on unpaid leave and that she could return to work once COVID-19 testing protocols were in place for her work location. In denying the requested injunction on October 14, 2021, the court held the plaintiff would likely not be able to establish either that United failed to engage in the interactive process with her as it did respond to her request for an accommodation in good faith or that United failed to reasonably accommodate her as the Company offered her a leave of absence and she was not entitled to the accommodation of her choice.
Even the United States Supreme Court has indirectly weighed in on the issue by refusing to hear appeals in multiple challenges of vaccine requirements. Most recently, the Supreme Court declined to consider an appeal from Maine healthcare workers seeking an injunction to stop Maine’s vaccine mandate from going into effect on October 29, 2021. In a brief order and without explanation, Justice Stephen Breyer denied the request for injunctive relief on October 19, 2021.
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