Vaccine mandates surviving legal attacks as companies weigh options

Some fear the COVID-19 vaccine is more harmful than the virus itself. Some argue that vaccine requirements violate their personal privacy rights. Others contend only they should be able to decide what goes into their bodies.

The debate playing out nationwide between the anti-vaxxers and those who embrace the shot comes at a time when many companies are grappling with whether to require their employees to get the COVID-19 vaccine. The chaos notwithstanding, the issue has largely been settled by the courts, at least so far.

In recent months, a number of challenges to vaccine mandates already in place have been playing out in courthouses across the country. From the courts’ perspective, the issue is more clear cut. The mandates have withstood legal assault, thanks in part to a 116-year-old U.S. Supreme Court decision that upheld a city’s authority to punish residents who refused to get smallpox vaccines.

Still, the toxic political climate surrounding vaccine mandates has many companies considering alternatives or preparing for possible litigation, all the while seeking the safest path for their employees, their customers and their families. Complicating matters is misinformation about the vaccine that is rampant across social media, causing confusion and speculation.

“It’s keeping executives up at night,” said Meredith Caiafa, an Atlanta employment lawyer representing health care, technology and hospitality companies. “They are trying to figure out what to do. I think more companies are going to take a hard look at vaccine mandates and consider imposing them.”

Disney, Walmart, Google, Tyson Foods, Netflix and Microsoft have told some or all of their employees that vaccination is now a condition of employment. (Cox Enterprises, which owns The Atlanta Journal-Constitution, is also requiring employees who enter its headquarters and some other offices to be fully vaccinated.)

The NFL is also enforcing a vaccine mandate for team executives, managers, coaches and scouts. In recent weeks, an assistant coach for the Minnesota Vikings and another for the New England Patriots were removed from their jobs for refusing to receive the COVID-19 vaccine.

The onslaught of the highly contagious delta variant — coming at a time when executives saw life inching back to a semblance of normality — has made companies more likely to impose vaccine mandates, Caiafa said. “The situation being the way it is now is just tremendously frustrating to employers and employees who want to keep themselves and their families safe.”

But the threat of litigation is real.

“It’s important to be in the fight against COVID fascism,” said attorney Jonathan Diener of Mule Creek, New Mexico. He is representing detention officers in a lawsuit over Doña Ana County’s mandate that its front-line employees be fully vaccinated.

The fact that the vaccines do not prevent infection and transmission is an “extremely important” part of the case, the lawsuit states. “This is because the argument for mandated vaccines is that they are necessary to protect society at large.”

As for himself, Diener emphasized the chasm between those who embrace the vaccine and those who want nothing to do with it.

“I wouldn’t take it in a million years,” he said. “I would consider cutting off a finger before doing something like that.”

Robert Schapiro, a University of San Diego law professor, said companies may require workers to do things that help their business. “Making sure that they are properly vaccinated during this pandemic is certainly one of them.”

Schapiro noted that the U.S. Equal Employment Opportunity Commission in May said employers can require COVID-19 vaccinations for its workers, as well as provide incentives for them to get a shot.

Companies must try to accommodate those who will not get the vaccine because of sincerely held religious beliefs or serious medical conditions, he said. This could be requiring them to wear masks, work from home or be reassigned to another position.

One of the most high-profile lawsuits so far against a vaccine mandate was brought by 117 employees of Houston Methodist Hospital. They sued after the hospital announced in April it was imposing a phased-in vaccine mandate.

The hospital said employees who were not vaccinated would be suspended for two weeks. Those who failed to get vaccinated by the end of their suspension would be fired.

The lawsuit noted that COVID-19 vaccines only have emergency use authorization — not final approval — from the Food and Drug Administration. Full FDA approval of the Pfizer-BioNTech vaccine may come as early Labor Day, The New York Times reported Tuesday. Full approval may trigger scores more vaccine mandates across the country.

The Texas lawsuit contended a government database that tracks adverse reactions to vaccines shows further study is needed to make sure COVID-19 vaccines are safe. It added that Houston Methodist plaintiffs “should not be forced to participate in these dangerous trials as a condition for employment.”

The right to avoid unwanted human experimentation dates back to the Nuremberg Code of 1947, established after Nazis were convicted of war crimes, the lawsuit stated.

On June 12, an outraged U.S. District Judge Lynn Hughes flatly rejected the lawsuit.

“The hospital’s employees are not participants in a human trial,” Hughes wrote, also dismissing claims the vaccines are experimental and dangerous.

Hughes found it “reprehensible” that the plaintiffs equated the vaccine requirement to forced medical experimentation during the Holocaust. “Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability and, in many cases, death,” he wrote.

Methodist made a choice “to keep staff, patients and their families safer,” the judge said.

Hospital employees may either get the vaccine or, if they choose, “work somewhere else,” Hughes wrote. “Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”

Almost 25,000 of Houston Methodist’s employees were vaccinated before the mandated deadlines, while 178 who were not were suspended, hospital spokeswoman Gale Smith said in a statement. Of the 178, 25 eventually got vaccinated and returned to work, while the remaining 153 resigned or were fired.

The plaintiffs are appealing Hughes’ decision to the 5th U.S. Circuit Court of Appeals in New Orleans, and their lawyer has said he will take the case to the U.S. Supreme Court if necessary.

At least one federal appeals court has weighed in on a vaccine mandate case — one brought by eight students wanting to attend Indiana University.

On Aug. 2, the 7th U.S. Circuit Court of Appeals in Chicago declined to issue a temporary injunction that would have kept the university from enforcing its vaccine mandate. (The school requires students who are exempt for religious or medical reasons to wear masks and be tested twice a week.)

“Each university may decide what is necessary to keep other students safe in a congregate setting,” Judge Frank Easterbrook wrote for a unanimous three-judge panel.

At a college, students must obey the rules and read and write assignments they may prefer not to, Easterbrook noted. And students who don’t want to be vaccinated “may go elsewhere,” Easterbrook said. Because there are other schools without mandates, “plaintiffs have ample education opportunities.”

Hundreds of the nation’s colleges and universities have imposed vaccine mandates — including Emory University and the Atlanta University Center, which are private institutions in Georgia. But the University System of Georgia is not requiring COVID-19 vaccines for students in state schools.

In his ruling, Easterbrook cited Jacobson v. Massachusetts, a 1905 decision by the U.S. Supreme Court that affirmed the city of Cambridge’s authority to fine adult residents who refused to get the smallpox vaccine.

The case was brought by pastor Henning Jacobson, who’d had a bad experience getting vaccinated in his native Sweden. Instead of paying Cambridge the $5 fine, Jacobson filed suit.

Jacobson’s arguments from more than a century ago resonate with some being made today. He called the mandatory vaccine unreasonable, oppressive and hostile to the right of all persons to care for their own bodies and health the way they see fit. Contending the vaccine “quite often” caused serious and permanent injury, Jacobson called it an assault on his person.

In a 7-2 decision, the Supreme Court upheld the city’s police powers, rejecting Jacobson’s challenge. At the same time, the justices said there could be limitations on such powers in “extreme cases” where the “regulations are so arbitrary and oppressive.”

Writing for the majority, Justice John Marshall Harlan said “every well-ordered society” is charged with keeping its citizens safe. And there are times, “under the pressure of great dangers,” when those citizens may be subjected to “reasonable regulations, as the safety of the general public may demand.”

Jacobson ultimately paid the $5 fine. But he did not get the vaccine.