Monday, October 4, 2021

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.