By Dawn Reddy Solowey, A. Scott Hecker, Coby Turner and James J. Swartz, Jr.
Seyfarth Synopsis: Despite President Biden’s recent declaration that the COVID-19 pandemic is over, litigation concerning employer vaccine mandates continues as employers face hurdles to ensure workplace safety and compliance with government mandates.
Here we take a closer look at issues companies are facing more than two years into the pandemic, and how you may help your business avoid some of the bigger minefields.
Since we began seeing vaccination-related litigation popping up around the U.S., we knew that complex and class action litigation would shortly follow. At this point, Seyfarth has tracked approximately 200 complex or class cases filed throughout the country containing claims related to vaccination mandates, and they continue to pour in.
While many of the early suits arose out of health care settings, which feature a uniquely vulnerable patient population, the recent suits target employers in a variety of other industries and workplace settings, such as education, entertainment, insurance, public safety, biotech, transportation, manufacturing, and even national defense, among others.
These new suits mark a shift from those attacking mandatory vaccination policies themselves and those claiming wrongful termination as a result of such policies, to broader allegations challenging employer programs that promote vaccination, or that impose different requirements for unvaccinated employees in the name of health and safety.
Class Action Litigation Takes a Turn
As an example of the new trends in vaccination-related litigation, consider the matter of Reid, et al. v. Honeywell International, Inc., a putative class action filed on September 23, 2022, in the Middle District of Florida. The 91-page complaint alleges that Honeywell imposed a vaccination mandate. Rather than a typical class action litigation asserting a uniform harm to employees, the plaintiffs here have asserted a number of damages theories related to the vaccination mandate:
- Certain of the named plaintiffs allege that they were denied exemptions, placed on administrative leave, and then terminated.
- Others were approved for an exemption, and allege that nonetheless, the employer discriminated against them by requiring them to mask, test, distance, and wear a badge revealing their vaccination status.
- Another group argues they were denied the opportunity to work from home.
- The plaintiffs also complain about employer initiatives meant to encourage vaccination, from a program whereby vaccinated employees could be entered into a raffle for prizes, to communications reminding employees of the importance of vaccination and upcoming deadlines.
Plaintiffs brought counts for religious and disability discrimination under Title VII and ADA, respectively, and alleged a hostile work environment and retaliation.
They also includes a relatively novel count alleging violations of the Emergency Use Authorization (“EUA”) provisions of the U.S. Code, on the grounds that the EUA requires that an individual have the right to refuse administration of the vaccine.
Plaintiffs seek injunctive and declaratory relief, as well as money damages.
Employers’ Defenses to Such Cases
Employers will have strong defenses to such suits. As a threshold matter, there is a powerful argument that such claims are not susceptible to class treatment, given that there are so many individualized questions of fact, e.g., on liability and damages.
Plaintiffs also face a steep climb to prove liability, both in the context of a religious or disability discrimination claim, a claim for failure to accommodate, or a hostile work environment claim.
To demonstrate a failure to accommodate a religious belief, plaintiffs must show a sincere religious conflict with the vaccine, and that the employer failed to provide a reasonable accommodation. The employer also has a defense that the accommodation(s) requested by plaintiffs would impose an undue hardship, whether that is a health and safety risk, a financial cost, an operational burden, or all of the above.
To prove a disability discrimination claim, plaintiffs must show that they are actually disabled, as defined by the ADA—a hurdle for many plaintiffs who had never identified as disabled or previously requested accommodation before the vaccination requirement. They must also show that they were “qualified” for their job position, which requires proof that they did not pose a direct threat to others. And as with the religious claim, the plaintiffs must show a failure to provide a reasonable accommodation, and the employer has available an undue hardship defense.
As for hostile environment, it is important to remember that being unvaccinated against COVID-19 is not a protected classification under federal law. Further, there is a high threshold for what constitutes a hostile work environment, which generally must amount to intolerable work conditions. With retaliation claims, plaintiffs are compelled to show that they faced disadvantageous treatment because they requested an exemption, rather than because they remain unvaccinated.
Best Practices to Minimize Risk of Vaccination Litigation
So how can businesses minimize the risk of being hit with vaccine litigation?
Many employers made decisions back in 2021 about whether and how to implement mandatory vaccination programs. Before making any adjustments to vaccination policies that may have employment consequences for non-compliant workers, employers should consult with experienced Labor & Employment counsel to consider potential discrimination or harassment implications.
Employers should also consult with experienced counsel regarding their infection control or other vaccine-related policies in order to minimize the risk of litigation, while also protecting business operations and the health and safety of staff, customers, vendors, and others. Employers may need to revisit and adjust these policies as the COVID-19 virus evolves, the public health landscape changes, and new vaccines and boosters emerge.
Seyfarth has advised employers throughout the pandemic as to best practices around COVID-19 protocols and vaccination policy, and has a robust COVID-19 Resource Center to assist in pandemic response and related strategy. The Seyfarth team has represented employers in some of the highest-profile, complex vaccine-related litigation in the nation, and has developed a COVID-19 Litigation Toolkit with resources on some of the most common litigation issues employers are facing. Seyfarth’s new Health Emergency and Infectious Diseases Task Force also stands ready to help employers tackle questions about COVID-19 and other emerging public health threats. If you have questions about vaccine or COVID-19 policies, or about a threatened or filed litigation, contact your Seyfarth attorney or any of the authors of this post.