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Courts Backing Government Employers’ COVID Safety Requirements

October 30, 2021

By Michael Burns, courtesy of SBAM Approved Partner ASE

Despite the controversy and calling out of employers that are requiring vaccination and other on-site safety protocols, the courts around the country are holding that State employers are within their rights to require employees to comply or lose their jobs.

How many decisions? The New York Times reports at least 17 lawsuits pertaining to vaccination requirements have been won by employers in the public sector by judges appointed by both Democrats and Republicans.

And it did not seem to matter what jobs were at stake.

In Maine just last week the First Circuit Court of Appeals ruled the state’s Governor could mandate healthcare workers to be vaccinated.

In Massachusetts a federal judge upheld that state’s Governor’s requirement that all of the state’s executive branch employees show proof of vaccination. This ruling was despite the lawsuit being brought by a union representing the employees and arguing the requirement breached its collective bargaining agreement.

Out on the west coast employees are seeing the same. A federal judge in Oregon swatted down a claim that the vaccine amounted to a “forced medical experiment.” The judge in that case noted that the vaccines had undergone clinical trials sufficient to prove its safety as determined by the Federal Food and Drug Administration.

Employers are still being challenged for exemptions from vaccination based upon disability and religious accommodation requests. One case that recently ruled against the employer was a lawsuit challenging the employers accommodation practices. The federal court ruled against the employer’s practice of allowing an exemption from vaccination for medical reasons but at the same time refusing to accommodate requests for exemption due to religious objections.

Private employers are anxiously awaiting the Occupational Safety and Health Administration Emergency Temporary Standards that will apply to employers over 100 employees in size. These rules will be used by employers to implement mandated vaccination and testing policies as well as to justify discipline or discharge for an employee’s failure to comply. Reports are these regulations may be out within a few weeks. They are still under review by the Office of Budget Management and the White House legal counsel.

In Michigan, both the Michigan Occupational Safety and Health Agency (MIOSHA) and the Whitmer administration have both stated, once the federal regulations are out, Michigan will adopt those rules pretty much as is and without any additional requirements.

Lawsuits will continue around employees rejecting the required vaccination. On Monday a union representing 24,000 police New York police officers filed their suit to “block the “draconian” implementation of a COVID-19 vaccine mandate…” With the law piling up against winning such suits and legal theories being exhausted it may be hard to see any suit being successful. But who knows when a sympathetic judge may be found. Not having much luck in the legal courts, government employees are turning to the court of public opinion where, for example, an ad where a fireman is seen packing up his stuff and leaving his job rather than get vaccinated and asking why he should have to choose. Given the country’s fatigue around the continuing pandemic, like fighting the rising tide of the law, fighting the tide of overall public opinion may be just as hard to win.

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