Employees Continue to Fight Compliance with Vaccine Mandates

Micaela Enger                                                                                                  Associate Editor                                                                                              Loyola University Chicago School of Law, JD 2023

An earlier blog post explored the challenges of employees returning to work, including questions about the legality of COVID-19 vaccine mandates. In response to the uptick in cases towards the end of the summer and into the fall, many large employers implemented vaccine mandates. As vaccine mandates have increased, so have the lawsuits contesting them. As of October 14, 2021, there have been at least thirty-nine federal cases contesting vaccine requirements imposed by either employers or governments and approximately fifty-seven total decisions, including federal and state cases. In most cases, courts are denying requests for temporary injunctions against the mandates or dismissing the cases.

Historical precedent of vaccine mandates

Many employees are arguing that government level vaccine mandates are unconstitutional and in violation of their civil liberties; however, legal precedent does not support their contentions. In Jacobson v. Massachusetts, a 1905 Supreme Court case, the Court upheld a Cambridge City law that required the smallpox vaccination for all of the inhabitants within Cambridge for the protection of the public health and public safety of the city. However, the Court did note they were not inclined to hold that the statute established an absolute rule if it can be shown that an individual is not a fit subject of vaccination such that the vaccination would impair the individual’s health. Justice Harlan wrote for the court’s majority and concluded that the state’s police power to enact laws for the public good, including public safety and public health allows broad sweeping vaccine laws. In 1992, the Court made a similar decision in Zucht v. King, holding that it is constitutional for a school to exclude students from public and private schools if they were not vaccinated for smallpox.

Legal confusion in the face of vaccine mandates

The COVID-19 vaccine mandates are being challenged on multiple grounds. Some cases make constitutional arguments that the mandates violate the fundamental right of privacy within the First Amendment and Fourth Amendment, focusing on free speech, the right to free religious exercise, and protections from unreasonable search and seizure. Other cases arise from the Fourteenth Amendment, arguing that a vaccine mandate violates liberty interests of bodily autonomy.  Further, some cases focus more on federal and state law violations with their arguments arising out of the Americans with Disabilities Act (“ADA”), the Civil Rights Act of 1964 (“CRA”), and the federal Food, Drug, and Cosmetic Act (“FDCA”). While there is precedent to support state vaccine mandates, the legality of a federal mandate is more complex.

This past summer, the Biden Administration required all federal workers and federal government contractors to be vaccinated. The Department of Labor’s Occupational Safety and Health Administration (“OSHA”) is developing a rule that will require all employers with at least 100 employees to mandate vaccinations or require regular testing to ensure that their workforce is protected. The requirement will likely impact over eighty million workers in the private sector. The Centers for Medicare and Medicaid (“CMS”) is also working to require vaccinations for healthcare workers in settings that receive Medicare and Medicaid reimbursement. The CMS requirement would cover the majority of healthcare workers across the county.

Where we are now

When federal mandates are challenged, the Executive Branch could rely on Section 361 of the Public Health Service Act (“PHSA”), which allows the Department of Health and Human Services (“HHS”) and the Centers for Disease Control (“CDC”) to act in order to “prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” Further, Congress may regulate states through their spending power by imposing conditions on the grant of money to state or local governments. The spending power allows the government to provide financial incentives to encourage states to enact vaccine mandates. The U.S. Equal Employment Opportunity Commission (“EEOC”) confirmed that federal EEO laws do not prevent employers from requiring vaccination as long as the employers comply with the reasonable accommodation provisions present in the ADA and Title VII of the CRA.

So far, seventeen cases, fifteen of them in federal court, have resulted in a court refusing to grant injunctions, allowing vaccine mandates to remain in place. Twenty-three cases are still pending. Four cases have resulted in some injunctive relief, and each of those cases involved religious freedom arguments. However, some courts have also declined to block mandates, stating that religious freedom arguments are not determinative. To further complicate the matter, recently, on October 11, 2021, Governor Abbot of Texas, signed an order banning vaccine mandates for workers and for consumers within the state. The Texas order argued that President Biden’s executive order is an example of federal overreach. However, Texas’s ban will likely be superseded by the Biden administration’s proposed plan. Ultimately, the interaction between federal vaccine rules and state vaccine rules will play out in the courts, including the laws surrounding the banning of vaccine mandates.