With COVID-19 anxiety rising amid the B.1.617.2 (Delta) variant currently circulating in the United States and more states, employers, and education institutions (private and public higher education and K-12) adopting or considering vaccine (and mask) requirements, employers may be looking for support for mandatory COVID-19 vaccine mandates. The following U.S. Equal Employment Opportunity Commission (EEOC) guidance and initial court decisions appear to clear the way and offer (some) peace of mind to employers who want to implement a vaccine mandate.1 But it is still important for employers considering implementing mandatory vaccine policies to remember that such policies must include exemptions for individuals with medical or non-medical (e.g., religious beliefs) objections. (See our recently updated article Considerations for Employers Contemplating a COVID-19 Vaccine Mandate (September 2021 Update)).
EEOC’s May 28, 2021, Guidance
By now, it is no secret that guidance from the EEOC does not prohibit an employer from instituting mandatory COVID-19 vaccine policies. On May 28, 2021, the EEOC issued guidance stating that “[t]he federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations . . . . These principles apply if an employee gets the vaccine in the community or from the employer.”
Recent Federal Court Rulings Striking Down Challenges to COVID-19 Vaccine Mandates
District Court Decisions
In June 2021, a federal district judge in the U.S. District Court for the Southern District of Texas summarily dismissed a class action brought by 117 employees against their employer’s (a hospital) COVID-19 vaccine mandate (Bridges v. Houston Methodist Hosp.). Relying on, among other things, the Nuremberg Code of 1974 and the 1964 Declaration of Helsinki, the employees argued that the Federal Food, Drug, and Cosmetic Act (FD&C Act) “does not permit Defendants to coerce an employee to accept an FDA unapproved vaccine on penalty of termination or other sanctions.” The court disagreed, finding that the FD&C Act did not provide the employees with a cause of action to sue employers and that the FD&C Act imposed requirements only on the Secretary of Health and Human Services (who oversees the FDA). This case is currently pending before the U.S. Court of Appeals for the Fifth Circuit.
The following month, a federal district judge in the U.S. District Court for the Northern District of Indiana denied a motion for preliminary injunction in a case brought by eight students against Indiana University (Klaassen v. Trustees of Indiana Univ.). The students sued the university because of its vaccine mandate and the extra requirements of masking, testing, and social distancing that apply to those students who receive an exemption from the mandate. The students argued, among other things, that these conditions of attendance violated the Due Process Clause of the U.S. Constitution’s Fourteenth Amendment.
Regarding the students’ Emergency Use Authorization (EUA) challenge, the court ruled that the informed consent requirement in Section 564 applies only to medical providers. Specifically, the court wrote:
“The University is not directly administering the vaccine to its students instead it is requiring students to obtain the vaccine from a medical provider and to attest that they have been vaccinated, save for certain exemptions.”
The court also stated that the university’s policy “isn’t forced vaccination. The students have options—taking the vaccine, applying for a religious exemption, applying for a medical exemption, applying for a medical deferral, taking a semester off, or attending another university. This policy applies for the fall 2021 semester only.” The students appealed the district court’s decision to the U.S. Court of Appeals for the Seventh Circuit.
A Seventh Circuit Decision
On August 2, 2021, the Seventh Circuit affirmed the district court’s decision, ruling that the university’s vaccine mandate, which includes medical and religious exemptions but also includes testing and face covering requirements, did not violate any of the students’ constitutional rights. The Seventh Circuit held that “[g]iven Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), which holds that a state may require all members of the public to be vaccinated against smallpox, there can't be a constitutional problem with vaccination against SARS-CoV-2.”
Significantly, the Seventh Circuit wrote that “this case is easier than Jacobson for the University, for two reasons.” First, unlike the vaccine mandate in Jacobson that lacked exceptions for adults, Indiana University’s policy has certain exceptions. “Second, Indiana does not require every adult member of the public to be vaccinated, as Massachusetts did in Jacobson. Vaccination is instead a condition of attending Indiana University. People who do not want to be vaccinated may go elsewhere. Many universities require vaccination against SARSCoV-2, but many others do not. Plaintiffs have ample educational opportunities.”
We hope this is helpful information as you continue to navigate the challenges of the COVID-19 pandemic. If our team can assist you with these issues, help develop or update your policies, or defend you should a dispute arise, please don’t hesitate to call us.
1This does not address the state and federal vaccination mandates that are being implemented as more fully addressed in Federal Government Issues New Vaccination Mandates, With More to Come and Considerations for Employers Contemplating a COVID-19 Vaccine Mandate (September 2021 Update).
Disclaimer: This article is not legal advice. It is provided solely for informational and educational purposes and does not fully address the complexity of the issues or steps that businesses or employers must take under applicable laws.