Key Immunization Case Developments | Shook, Hardy & Bacon LLP


Jurisprudence relating to vaccines evolves rapidly and almost daily. Recent key decisions include:

Developments in Supreme Court cases: The Supreme Court continued its trend on Friday to deny emergency appeals aimed at blocking vaccination warrants in John Does 1-3 c. Janet T. Mills, Governor of Maine, No. 21A90. At issue: Maine healthcare workers’ religious protest against state regulations requiring certain healthcare workers to receive COVID-19 vaccines. Justice Breyer dismissed the appeal without comment. Justices Barrett and Kavanaugh concurred with this view, stating that emergency appeals to the Court constitute “extraordinary relief” that is unwarranted on matters of first impression.

Three judges (Gorsuch, Thomas and Alito) expressed their dissent, saying the call met the standard for emergency relief. The Doe v. Mills dissent provides some guidance to employers:

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

Other developments from the Federal Court: Also on Friday, two judges in an Illinois federal court dealt with similar injunction requests – one suspended the application of a vaccination warrant and the other did not, which provides additional insight:

  • Suspension of mandate granted: In What is it. NorthShore University Healthsystem, 21-cv-05683, the plaintiffs successfully obtained a suspension of the system’s mandate program, which was to put unvaccinated workers on leave effective November 1. The plaintiffs argued that the Illinois Health Care Right of Conscience Act, 745 ILCS 70/1, and federal prohibitions on religious discrimination supported their stay claim. The court found it likely that the plaintiffs would prevail in their claims and found the most relevant plaintiffs’ claims that those seeking non-religious (medical) exemptions were allowed to continue working. The court rejected the system’s arguments that changes to the law are pending to support the vaccination warrant programs and that plaintiffs would not be fired but put on leave.

    The court’s oral decision said that no worker with religious objections could be put on leave. He also ordered a preliminary briefing on the injunction focusing 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.

  • Suspension of mandate refused: Troogstad v. City of Chicago and Governor Pritzker, 21-cv-05600 came to the opposite conclusion, denying the demands of Chicago city workers to suspend Chicago’s vaccination warrant order. Building on the recent decision of the Seventh Circuit in Klaassen v. Indiana University Trustees, the court ruled that states have the right to implement vaccination mandates. The court also concluded that the plaintiffs were probably unsuccessful on the merits of their claims.

Certain factors 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 have the option to stop; (3) the City provided statistics regarding increasing rates of infection among City workers and unvaccinated Chicagoans as a whole; and (4) reporting immunization status is similar to providing any other medical information.

Key points to remember: While warrants are enforceable for other reasons in the public employer / government context, all employers are well advised to be consistent when evaluating medical and religious exemptions. It is also advisable to review requests for religious exemptions from Illinois workers under the Illinois Healthcare Right to Conscience Act (HCRCA), while the enforceability of recent amendments to the HCRCA, which are detailed below, remains in dispute. It is still the law that religious beliefs must be sincere and that employers may consider the undue burden to make accommodations for medical and religious reasons.

Illinois HCRCA Amendment

Last Thursday night, the Illinois legislature passed an amendment to the HCRCA. The change creates a new section 70 / 13.5 of the law, to allow public officials and any public or private “association, agency, company, entity, institution or employer” to impose requirements “intended to prevent contraction or collapse. transmission of COVID-19. “The amendment specifies that”[i]The application of such measures or requirements does not constitute a violation of this law. The amended wording will not affect an individual’s rights or the remedies available under federal law. Governor Pritzker is expected to sign the bill shortly. As noted above, the HCRCA, which allows denial of care on religious grounds, has been cited by complainants opposing vaccination warrants, who argue that such warrants violate the law.

Federal contractor’s mandate and vaccine challenges

Thursday and last Friday, Executive Decree 14042 (EO 14042), which makes COVID-19 vaccination mandatory for federal contractors and subcontractors, has been challenged on various grounds by nineteen states in four separate lawsuits. Missouri Attorney General leads most states (10) with his EO 14042 challenge in Missouri v. Biden, 4: 21-cv-01300 (ED 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 under covered contracts and those performing tasks related to covered contracts on the same job site must be fully vaccinated by December 8, 2021, with the exception of employees who are legally entitled to medical or religious accommodation. September 24, 2021, release of “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” further refines the mandate. According to this guide, 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 where an employee of the two preceding groups is likely to visit. Although OE 14042 contains a limited number of exemptions, these are very specific to the facts. Covered contractors are required to comply with the following conditions:

  • Verify vaccination through appropriate documentation;
  • Ensure all employees and visitors comply with social distancing and masking requirements; and
  • Designate a COVID-19 security coordinator responsible for coordinating, implementing and adhering to security protocols.

It is important to note that OE 14042 does not allow optional weekly testing instead of compliance. The Federal Workforce Security Task Force released updated guidelines regarding vaccination and safety protocols, scope of guidelines and compliance.

Upcoming OSHA Standard for Private Businesses

For private employers with 100 or more employees, OSHA’s Temporary Emergency Standard (ETS) will require vaccination or weekly testing for their unvaccinated employees, as well as paid time off so employees can get vaccinated and recover after 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 effect immediately in the 29 states where OSHA has jurisdiction. The ETS will likely include specific language indicating that it supersedes any national or local immunization laws that are not as strict as the ETS. Thus, any state order like the one issued by Texas Governor Greg Abbott could become largely null and void. However, during any period between the issuance of a state order banning COVID-19 vaccination warrants and the passage of the ETS, employers in those states will be in limbo when it comes to their immunization policies. OSHA fines for non-compliance could be significant.


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