December 6, 2021
Here’s an updated vaccination litigation table. The last few weeks have seen several developments (or lack of developments) of note:

• Several lawsuits have been filed challenging the federal mandates applicable to large employers and healthcare facilities. Courts have issued stays in the mandates, mostly concluding that the emergency nature of the mandates violates the Administrative Procedures Act. The Sixth Circuit “won” the lottery that’s conducted when identical federal claims are filed in various courts, at least on the large-employer Emergency Temporary Standard, but has yet to issue any decisions in the cases.
• The federal mandate applicable to federal employees and the military continues to be upheld.
• The most common claims brought by employees in individual or group suits challenging mandates continue to be based in the Fourteenth Amendment (“bodily integrity,” privacy, and substantive and procedural due process), the First Amendment (religious freedom), the Americans With Disabilities Act (failure to accommodate), Title VII (the “natural immunity” claim, phrased in equal protection terms), state law claims (constitutional privacy and common-law assault), and international law (the Nuremberg Code). As nearly as I can tell, every court addressing the merits of these claims has ruled in favor of vaccination mandates. By my count, there have been 59 such decisions, and the scoreboard is now 59-0.
• There have been no new decisions on the negotiability of vaccine mandates. So far, four states have weighed in on pieces of the negotiability issue. In a case involving the University of California system, California’s PERB ruled that the decision to have a mandatory vaccination policy was a non-negotiable management right, but that there were negotiable effects of the decision. PERB did not address whether California’s “emergency exception” that would allow implementation before the conclusion of effects bargaining applied. In New Jersey, the state’s court of appeals seemingly ruled that neither the decision nor the effects of a mandate were negotiable (the court’s opinion doesn’t explicitly address effects bargaining). In Illinois, a state trial court stayed Chicago’s vaccine mandate pending interest arbitration over the issue, though the Illinois Labor Relations Board has not issued a “scope” decision on the issue. In New York, the “teacher’s mandate” went to interest arbitration in September; a recent decision deferred to the arbitrator’s decision as resolving procedural due process claims raised by teachers.
• Courts considering requests for TROs and/or Preliminary Injunctions against vaccine mandates are seemingly uniform when they get to the “irreparable harm” requirement. This passage from the Sambrano v. United Airlines case is typical: “The Court is not insensitive to Plaintiffs’ plight. A loss of income, even temporary, can quickly ripple out to touch nearly every aspect of peoples’ lives, and the lives of their families and dependents. But the Court’s analysis must be guided by the law, not by its sympathy. Despite the novel facts presented here, the case law is clear that hardships stemming from loss of income are remediable; axiomatically such hardships cannot be called irreparable.”

If you know of a decision that’s not in the table, please feel free to send it to me and I’ll incorporate it into the next version of the table.