COVID-19 Vaccination Mandate Developments to Watch
As legal challenges continue to mount across the country against federal, state, and local mandates requiring certain employees and high education students to receive a COVID-19 vaccine and/or comply with testing requirements, notable legal cases have popped up that many local government employers should know. Below are two cases we recommend watching closely.
Justice Sotomayor Denies Emergency Injunction Application
The United States Supreme Court weighed in (or, in this case, refused to weigh in) on New York City Public School's vaccination mandate for teachers and staff. On Friday, October 1, 2021, Justice Sonya Sotomayor, assigned to handle emergency motions from the Second Circuit Court of Appeals, denied an emergency application for injunctive relief (a legal remedy used to restrain or prohibit a party from conducting an act) by a group of public-school teachers challenging the school district's mandate.
According to the New York City Department of Education's (DOE) website, staff "who do not have an approved exemption or leave, will be removed from payroll beginning Monday, October 4 if they are not vaccinated by end of day Friday, October 1."
This is now the second time that the Supreme Court has refused to grant an emergency application for relief challenging vaccination requirements. The first instance came in August when Justice Amy Comey Barrett denied a similar application arising out of the Seventh Circuit Court of Appeals where a group of Indiana University students challenged their institution's COVID-19 vaccination mandate.
We will keep readers of any further developments in federal court of any challenges to COVID-19 mandatory vaccinations.
Individual EMS Personnel File Suit over Vaccination Mandate in Illinois
In late September, a group of emergency services (EMS) personnel filed a lawsuit in federal court challenging Illinois Governor J.B. Pritzker's COVID-19 vaccination requirement for health care workers in Illinois. The plaintiffs are employed by the Naperville Fire Department. Plaintiffs in Halgren v. City of Naperville argue that the Governor's EO violates the due process and equal protection rights of the named plaintiffs.
The EMS personnel allege the mandate is not narrowly tailored to serve a compelling governmental interest. Here, the term "narrowly tailored" references a constitutional doctrine requiring specific laws and public policies to be precisely written when addressing particular issues and not overly broad hindering individual rights. Instead, the plaintiffs allege the order is a "punitive measure taken against those who assert their fundamental rights." The suit also contends that the Governor's EO "far exceeds the power of the governor granted to him by Illinois statute."
The suit cites Governor Pritzker's Executive Order 2021-22 (COVID-19 Executive Order NO. 88), which states:
"[a]ll Health Care Workers must have, at a minimum, the first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by September 19, 2021, and the second dose of a two-dose COVID-19 vaccine series within 30 days following administration of their first dose in a two-dose vaccination series."
The Governor's EO defines Health Care Worker as any worker that: "is employed by, volunteers for, or is contracted to provide services for a Health Care Facility, or is employed by an entity that is contracted to provide services to a Health Care Facility" and is "in close contact (fewer than 6 feet) with other persons in the facility for more than 15 minutes at least once a week on a regular basis." Health care facilities include emergency medical services and IDPH licensed emergency medical service vehicles.
Although this case is still in its infancy, challenges to COVID-19 vaccination mandates and testing requirements appear to move relatively quickly through the courts. No doubt, we will have more updates on this case soon, so check back for more information.
Vaccination Mandate for Private Sector Employers with 100 Employees
Yesterday, President Joe Biden announced that employees working for private sector businesses with 100 or more employees must receive the COVID-19 vaccine. Under the "Path out of The Pandemic: President Biden's COVD-19 Action Plan", the Occupational Safety and Health Administration will issue an Emergency Temporary Standard (ETS) mandating covered employees to either receive a vaccination or submit to weekly testing. Under the new ETS, unvaccinated employees must produce a negative COVID-19 test at least once a week before returning to work.
President Biden's new directive also calls for the Center for Medicare & Medicaid Services (CMS) to require employees of health care facilities that receive Medicare and Medicaid reimbursement to receive the vaccine. In addition, the federal government will also require employees of federal contractors to be fully vaccinated or comply with weekly testing and other mitigation measures.
Approximately 100 million employees will likely be affected by this action plan, making it one of the largest public health initiatives in our nation's history. This comes as many states are still grappling with increasing COVID-19 infections among unvaccinated members of the public.
So far, the plan does not include requirements for state, county, or local governments. Nonetheless, local governments should continue their awareness of ever-changing rules and regulations around vaccinations, masking, and other COVID-19 mitigation measures. Currently, the State of Illinois requires all persons over the age of two who can medically tolerate a face covering to wear one in public places, including employees unless their workplace allows for six feet of social distancing.
Governor Updates Previous Face Covering and Vaccination Executive Order
It seems that almost as soon as we post something about new COVID-19 guidance, that guidance has changed. But, we did want to update you on a recent Executive Order issued by the Governor that extends the time-frame for the new vaccine mandates for certain Illinois workers, including healthcare workers, school personnel, and higher education personnel.
In Executive Order 2021-22
, the Governor updated EO 2021-20 which had set a deadline for vaccine compliance for a first shot of September 5, 2021. The deadline for covered workers to get the first shot is now September 19, 2021. This new vaccine mandate applies to health care workers (as defined in the EO), school personnel (also defined in the EO), and higher education personnel (defined in the EO). Until these personnel are fully vaccinated, they must comply with certain testing requirements set out in the EO (unless they qualify for a medical or religious exemption). We encourage you to consult with your labor counsel on these new requirements, as they place certain affirmative obligations on employers who are covered by these new requirements.
The EO also includes face covering requirements for persons over age 2 in indoor spaces.
New Masking Mandates and Vaccination Requirements for Illinois
On Thursday, August 26, Governor J.B. Pritzker issued a press release
detailing new masking mandates for indoor activities throughout the State of Illinois and vaccination requirements for healthcare and education employees and higher education students. In addition, Illinois Department of Public Health Director Dr. Ngozi Ezike noted that many COVID-19 hospitalizations, cases, and deaths have resulted from unvaccinated individuals. Below is a summary of the mitigation measures the State of Illinois will roll out to stop the spread of COVID-19.
Starting on Monday, August 30, all Illinois residents over two years old must wear a mask indoors. This requirement does not extend the wearing of masks outdoors, but it is advised that public members in large outdoor crowds wear a mask. This announcement applies to all members of the public—regardless of vaccination status.
Employers can find guidance on face coverings in the workplace by visiting the IDPH website here.
COVID-19 Vaccination Requirements
As the Delta variant continues to rise throughout the state, certain employees and other members of the public in “high-risk settings”, will be required to obtain a vaccination. As of now, the press release states that private and public healthcare workers, workers in long-term care facilities, teachers and staff in pre-k-12 schools, and higher education personnel and students must obtain a vaccination. Applicable workers, personnel, and students must receive their first dose of a two-dose vaccination or one dose of a single-dose vaccination no later than September 5, 2021.
Further, any applicable worker or student that does not obtain a vaccine due to a medical or religious reason must follow a routine testing schedule to detect outbreaks of COVID-19. Those workers and students who do not provide vaccination proof may not enter healthcare or educational facilities unless they follow a required testing protocol.
Non-healthcare or educational employers looking to implement a vaccination requirement should contact an Ancel Glink, P.C. attorney for specific guidance.
Supreme Court Upholds Indiana University's COVID-19 Vaccination Mandate
In another step to bringing clarity to mandatory COVID-19 vaccines, the Supreme Court recently refused to hear a challenge to Indiana University's student vaccination mandate. Justice Barret, who handles emergency appeals arising out of the United States Court of Appeals for the Seventh Circuit, which encompasses the state of Indiana, declined to hear the case
without comment. The decision marks the first time that the Supreme Court has dealt with a case testing the legality of a COVID-19 vaccine mandate.
Indiana University's policy requires all students to be vaccinated against COVID-19 unless they are exempt for medical or religious reasons. Exempt students must wear masks and be tested for the virus twice a week.
Eight students sued the University, arguing that the policy violated their constitutional rights to "bodily integrity, autonomy and medical choice." In July, a federal District Court Judge rejected
the students' claims, finding that the "balance of harms doesn't weigh in the students' favor here." The judge noted that the students' choice not to be vaccinated bears on the health of other students, faculty, and staff – a valid University concern.
The Seventh Circuit Court of Appeals agreed with the federal district court's opinion and held
that the vaccine mandate did not violate the students' constitutional rights.
The 7th Circuit relied on a Supreme Court case from 1905, Jacobson v. Massachusetts
, which held that states could require vaccinations during the smallpox epidemic. Easterbrook pointed out that the University's policy was less strict than the one at issue in Jacobson because the University policy contained exemptions for religious or medical reasons.
Easterbrook also noted that Indiana does not require every adult member of the public to be vaccinated, as Massachusetts did in Jacobson. Instead, Easterbrook found that vaccination is merely a condition of attending Indiana University—those "who do not want to be vaccinated may go elsewhere." Because vaccination requirements for other diseases (measles, mumps, rubella, influenza, and more) are common in university enrollment policies, the Circuit Court held that the COVID-19 vaccination mandate did not violate the students' constitutional rights.
It is likely that the Court would reach a similar conclusion for employer-mandated vaccines. Applying the analysis of this recent case to employee mandates, “the balance of harm” to co-workers and the public likely does not weigh in favor of employees provided that medical and religious exemptions are available.