New Biden and Employer Vaccine Requirements Likely to Spark Lawsuits

By D. Mark Wilson posted 08-06-2021 14:04


President Biden's vaccine rule for federal employees and recent employer vaccine announcements are expected to generate litigation that could threaten the longstanding legal authority of employers to impose health measures at work.  Meanwhile, a group of former public health officials has called on employers to take “clear and actionable measures”—including temporarily requiring vaccines—to keep their workers safe.

So far, vaccine requirements have had some early wins in court.  A federal judge in Texas shot down a suit from health care workers at a Houston hospital that required its employees to be vaccinated.  The case has been appealed to the 5th Circuit.  In addition, a federal judge in Indiana blocked a challenge to an Indiana University rule mandating both students and staff get the vaccine, with the 7th Circuit Court of Appeals upholding that decision.

But could the Supreme Court strike down a landmark vaccine case?  Some legal experts worry that the 1905 case that has long protected public vaccine mandates will come under attack amid increased scrutiny of public health mandates, and there is greater uncertainty about how the six conservative justices might rule.  In earlier cases on various pandemic-related restrictions, the Supreme Court has pushed back against state limitations.

A George Mason University law professor has challenged a school vaccine mandate in court, arguing its COVID policy threatening discipline against unvaccinated employees violates his constitutional rights.

letter from a bipartisan group of former public health officials calls on employers to help “keep Americans safe, while respecting individual liberties” by temporarily requiring vaccinations, with medical and religious exceptions.  But if a vaccination requirement is not an option, they recommend:

  • Infection screening protocols requiring employees and regular visitors (not retail customers) to be routinely screened with a rapid test, typically twice weekly;

  • Proof of full vaccination allowing individuals to bypass the routine testing requirement;

  • Incentives for vaccination including cash payments and paid leave to get vaccinated, providing easy access to vaccination where possible; and

  • Following CDC mask recommendations.

Outlook:  The Biden administration has still not provided federal contractors with any guidance about how to implement the President’s announced vaccine requirements.  Most of the legal challenges to the vaccine mandates are not likely to reach the Supreme Court until after the current wave of Delta variant infections subsides.  In the interim, most employers are on their own and must carefully weigh the pros and cons of adopting a vaccine mandate.