Summary of Federal Court Decisions in Class Cases in Advance of Supreme Court Argument on the Federal COVID-19 Vaccine Mandate

Key Takeaway:

The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) mandating that private employers with more than 100 employees determine the COVID-19 vaccination status of each employee by obtaining proof of vaccination. The mandate requires consistent testing for unvaccinated employees. OSHA has indicated that it will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good-faith efforts to come into compliance with the standard. The U.S. Supreme Court has scheduled oral argument on the constitutionality of the mandate for January 7, 2022.

The mandate has prompted a deluge of lawsuits, including several alleging putative class action claims. While these cases have not reached the stage of a determination regarding class certification, many federal courts have now ruled on requests to enjoin vaccine mandates from taking effect. In advance of oral argument before the Supreme Court, the below summaries discuss recent decisions by lower federal courts addressing challenges to vaccine mandates in cases brought as putative class actions. In short, courts have been reluctant to restrain or enjoin mandates as they apply to class plaintiffs and have typically found that claims challenging the mandates are unlikely to succeed.

Valdez v. Grisham, 2021 WL 4145746 (D.N.M. Sept. 13, 2021)

A class of hospital employees and state fair exhibitors who opposed the state of New Mexico’s COVID-19 vaccine mandate sued the state alleging civil rights violations and seeking injunctive relief to prohibit the state’s mandate from taking effect. The District of New Mexico denied Plaintiffs’ request for a temporary restraining order and preliminary injunction because the court determined it was within the police power of a state to provide for compulsory vaccination, procedural due process rights were not implicated, and the state enjoyed sovereign immunity as to the state constitutional claims.  The court also held plaintiffs could not establish irreparable harm as their damages where compensable by monetary damages, and the balance of equities tipped in favor of Defendants given the strong public interest in preventing the spread of COVID-19.

Harsman v. Cincinnati Children's Hosp. Med. Ctr., 2021 WL 4504245 (S.D. Ohio Sept. 30, 2021)

Healthcare workers for five major healthcare systems in the Cincinnati area filed class action complaints and requested that the Southern District of Ohio enjoin vaccine mandates imposed by those organizations. The court refused to do so, finding that Plaintiffs failed to demonstrate a likelihood of success in part because “the overwhelming majority of courts to consider vaccine mandates have found them constitutionally sound.”

Sambrano v. United Airlines, Inc., 2021 WL 5176691 (N.D. Tex. Nov. 8, 2021), reconsideration denied, 2021 WL 5445463 (N.D. Tex. Nov. 19, 2021)

United Airlines imposed a mandate that all of its employees receive at least the first dose of a COVID-19 vaccine by September 27, 2021. Named Plaintiffs representing a putative class of employees requesting religious or medical exemptions from the company’s mandate brought suit in the Northern District of Texas. The court denied their request for a preliminary injunction blocking the mandate from going into effect. The court found that Plaintiffs had not clearly carried their burden to show irreparable harm that would entitle them to a preliminary injunction. Without ruling on the likelihood of success, the court also noted that Plaintiffs’ arguments “appear compelling and convincing at this stage.”

Navy Seal 1 v. Biden, 2021 WL 544897- (M.D. Fla. Nov. 22, 2021)

In response to President Biden’s September 9, 2021 Executive Order directing each federal agency to require the vaccination of every federal civilian employee, a class of service members, federal contractors, and employees of federal contractors, sued President Biden, the Secretary of DoD, and the Department of Homeland Security claiming that the Order violated the “informed consent” provisions of 21 U.S.C. § 360bbb-3 (a statute authorizing emergency use for medical products), the Free Exercise Clause, and the Religious Freedom Restoration Act (RFRA). The Middle District of Florida denied the requested temporary restraining order and preliminary injunction for the civilian Plaintiffs because, among other reasons, none of the named Plaintiffs were civilian employees. Regarding the military service-member claims, the court deferred Plaintiffs’ request for a preliminary injunction until January 7, 2022, for want of more data.

Broecker v. New York City Department of Education, 2021 WL 5514656 (E.D.N.Y. Nov. 24, 2021)

Employees at schools operated by the New York Department of Education (NYC DOE) sued the NYC DOE and various other city officials and teaching organizations which sought to withhold pay from tenured and civil service employees who failed to take a COVID-19 vaccine. The employees alleged that withholding pay violated their procedural due process rights, statutory and contractual rights that entitled them a hearing before imposing discipline, and alleged collusion. The Eastern District of New York denied injunctive relief because monetary damages could address their claims, and because the balance of safeguarding public health and safety weighed in favor of denial.

Rodden v. Fauci, 2021 WL 5545234 (S.D. Tex. Nov. 27, 2021)

On November 27, 2021, the Southern District of Texas denied a request for preliminary injunction and a temporary restraining order sought by a putative class of federal employees against directors and officers of federal agencies that were members of the Safer Federal Worker Task Force and members of the White House COVID-19 Response Team.  Plaintiffs alleged they all had COVID-19 in the past and thus had immunity greater than or equal to that provided by some of the approved vaccines. They argued that the order violated their substantive due process right to refuse unwanted medical care, violated the right to liberty and against unconstitutional conditions, was unconstitutionally discriminatory, and violated the FDA provision requiring recipients of an emergency use product to be informed of the option to accept or refuse administration and the potential benefits and risks.  The court held Plaintiffs’ injuries were not imminent since the majority had applied for an exemption and those requests had not yet been resolved.  As for the one plaintiff who could establish imminent and irreparable harm, the court held the Task Force could not redress her claim; only ICE, the agency for which she worked, could do that and ICE was not a defendant in the case.

Creger v. United Launch All. LLC, 2021 WL 5579171 (N.D. Ala. Nov. 30, 2021)

Employees of an aerospace engineering firm filed a complaint seeking certification of a class and a temporary restraining order and preliminary injunction enjoining the company’s vaccination policy requiring all employees to receive at least one dose of a COVID-19 vaccine. The policy permitted employees to request a religious or medical exemption, but if the employee was not granted an exemption, they were deemed to have voluntarily resigned their position if they refuse to get vaccinated. Finding that the Plaintiffs had failed to demonstrate: (1) a substantial likelihood of success on the merits; (2) that they would suffer irreparable harm in the absence of injunctive relief; (3) that the harm they would suffer in the absence of an injunction would outweigh harm suffered by the employer; and (4) that the public interest favored injunctive relief, the Northern District of Alabama denied Plaintiffs’ requests.

Ciseneroz v. City of Chicago, 2021 WL 5630778 (N.D. Ill. Dec. 1, 2021)

A putative class of City of Chicago employees brought suit against the City of Chicago regarding the city’s COVID-19 vaccine mandate and moved for a temporary restraining order. The Northern District of Illinois denied the motion, finding that Plaintiffs failed to show a likelihood of success on the merits because the city’s vaccination policy is a neutral policy of general applicability that provides for religious exemptions.

Doe 1 v. NorthShore University HealthSystem, 2021 WL 5578790 (N.D. Ill. Dec. 3, 2021)

Plaintiffs in Doe v. NorthShore University HealthSystem sought a preliminary injunction and preliminary class certification on behalf of NorthShore University HealthSystem employees who sought a religious exemption to NorthShore’s COVID mandatory vaccination policy and were imminently subject to unpaid leave, employment termination, or a unilateral change to their compensation, benefits, or conditions of employment if they did not comply.  Plaintiffs argued the mandatory policy violated Title VII of the Civil Rights Act of 1964 and the Illinois Health Care Right of Conscience Act.  The Court denied their requests because it found that Plaintiffs would not be harmed irreparably, a prerequisite to the issuance of a preliminary injunction, since loss of employment is fully compensable by monetary damages.

Garland v. New York City Fire Dep’t, 2021 WL 5771687 (E.D.N.Y. Dec. 6, 2021)

Employees of the New York City Fire Department who had not received at least one dose of a COVID-19 vaccine filed a class action complaint challenging an order by the New York City Department of Health and Mental Hygiene requiring that all City employees show documentation of having received at least one dose. The Eastern District of New York denied their requests for a restraining order and preliminary injunction, finding in part that their claim was unlikely to succeed on the merits.

Kane v. de Blasio, 2021 WL 5909134 (S.D.N.Y. Dec. 14, 2021)

Employees of the New York City Department of Education filed a class action complaint and sought a preliminary injunction seeking to enjoin Defendants from enforcing the City’s vaccine mandate with regard to employees with sincere religious objections to the vaccine. The Southern District of New York denied the injunction, in part because Plaintiffs did not show a likelihood of success on the merits.