New frontier in COVID-19 vaccine litigation

Synopsis of Seyfarth: Despite President Biden’s recent statement as the COVID-19 pandemic is over, litigation over employer vaccination mandates continues as employers face obstacles to ensuring workplace safety and compliance with government mandates.

Here we take a closer look at the issues businesses are facing more than two years into the pandemic and how you can help your business avoid some of the biggest minefields.

What’s new?

Since we started seeing vaccine-related litigation in the United States, we knew that complex and class-action litigation would follow shortly. At this point, Seyfarth has tracked about 200 complex or group cases filed nationwide containing claims related to vaccination warrants, and they keep coming.

While many of the earliest lawsuits came from healthcare settings, which have a particularly vulnerable patient population, recent lawsuits target employers in a variety of other industries and workplaces, such as education, entertainment, insurance, public safety, biotechnology, transportation. , manufacturing and even national defense, among others.

These new lawsuits mark a shift from those attacking mandatory vaccination policies themselves, and those claiming wrongful termination because of these policies, to broader allegations challenging employer programs that promote vaccination or impose different requirements for unvaccinated employees in the name of health and safety. .

Class action litigation takes a turn

As an example of new trends in vaccine litigation, consider the issue of Reid, et al. against Honeywell International, Inc., a putative class action lawsuit filed 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 claiming uniform harm to employees, the plaintiffs here invoked a number of theories of damages related to the vaccination mandate:

• Some of the named plaintiffs allege they were denied exemptions, placed on administrative leave and then fired.
• Others have been approved for exemption, and allege that nevertheless, the employer discriminated against them by requiring them to mask themselves, test themselves, distance themselves and wear a badge revealing their vaccination status.
• Another group says they have been denied the opportunity to work from home.
• Complainants also complain about employer initiatives to encourage vaccination, ranging from a program allowing vaccinated employees to enter a raffle to win prizes, to communications reminding employees of the importance of vaccination and upcoming deadlines.

The plaintiffs brought charges of religious discrimination and disability under Title VII and the ADA, respectively, and alleged a hostile work environment and retaliation.

They also include a relatively new count alleging violations of the Emergency Use Authorization (“EUA”) provisions of the US Code, on the basis that the EUA requires an individual to have the right to refuse administration of the vaccine.

The plaintiffs seek injunctive relief and declaratory relief, as well as damages.

Defenses of employers in such cases

Employers will have strong defenses against such lawsuits. As a preliminary issue, there is a strong argument that such claims are not susceptible to class treatment, given that there are so many individualized questions of fact, for example, of liability and damages .

Plaintiffs also face a steep climb in proving liability, both in a religious or disability-related discrimination claim, an accommodation claim, or a work environment claim. hostile work.

To demonstrate that they disregarded a religious belief, claimants must demonstrate a sincere religious conflict with the vaccine and that the employer failed to provide reasonable accommodation. The employer also has a defense that the accommodation requested by the applicants would impose an undue hardship, whether in terms of health and safety risk, financial cost, operational burden or all of the above.

To prove a disability discrimination complaint, complainants must prove that they are actually disabled, as defined by the ADA — a hurdle for many complainants who had never identified as disabled or had previously applied for a disability. accommodation before the vaccination requirement. They must also show that they were “qualified” for their position, which requires proof that they posed no direct threat to others. And as with the religious claim, plaintiffs must show that they failed to provide reasonable accommodation, and the employer has an undue hardship defense.

With respect to hostile environment, it is important to remember that being unvaccinated against COVID-19 is not a protected classification under federal law. Additionally, there is a high threshold for what constitutes a hostile work environment, which must generally amount to intolerable working conditions. With retaliation claims, plaintiffs are forced to prove that they suffered disadvantageous treatment because they claimed an exemption, rather than because they are still unvaccinated.

Best Practices for Minimizing the Risk of Vaccination-Related Disputes

So how can companies minimize the risk of being affected by vaccine litigation?

Many employers have made decisions in 2021 on whether and how to implement mandatory vaccination programs. Before making changes to vaccination policies that may have employment implications for non-compliant workers, employers should consult with an experienced labor and employment lawyer to review the potential implications for discrimination or harassment.

Employers should also consult with experienced counsel regarding their infection control or other vaccine-related policies to minimize the risk of litigation, while protecting business operations and the health and safety of staff, customers, suppliers and others. Employers may need to review and adjust these policies as the COVID-19 virus evolves, the public health landscape changes, and new vaccines and boosters emerge.