A look back
For employers, 2021 was a challenging year. The post-election landscape, changing federal and state legislation, and the effects of a seemingly endless global pandemic created a difficult business climate. Efforts to limit the spread of COVID-19 were met with fierce opposition – legally and otherwise; still, employers are seriously continuing to maintain their operations safely and efficiently. But 2021 brought other important, non-COVID-19 developments. This number of Report on class action trends offers a snapshot of the most significant employment-related class action activity from the tumultuous year.
Vaccine injunctions set in motion lawsuits
The COVID-19 pandemic continued to pose enormous challenges in 2021. The Delta and Omicron variants, the volatile policy of vaccines and masks and testing, severe labor shortages, and the patchwork of ever-changing laws and regulations have created an environment at risk of class-wide responsibility. That Autumn 2021 edition of Report on class action trends discussed many of the challenges facing employers in the late stages of the COVID-19 pandemic.
At present, the majority of new COVID-19-related recruitment cases are centered around mandatory vaccination policies. A wave of complaints began in mid-2021 with no sign that it will soon ebb out. Employees have sued individually, have filed major complaints from multiple complaints and have filed class actions with a view to invalidating vaccine mandates and redress for unfavorable employment lawsuits due to non-compliance. Republican-led state governments, professional groups, corporations, unions, public policy groups, and private citizens have also filed complaints (often jointly) that raise similar challenges. University students and parents of K-12 children have sued to mandate mandates implemented by universities and by local school districts.
Plaintiffs have sued for invalidating President Joe Biden’s orders for federal contractors and employees, Department of Defense (DOD) vaccine mandates for military and civilian employees, Occupational Safety and Health Administration’s Emergency Temporary Standard (OSHA ETS) “vaccine or test” rule for employers with 100 employees or more, the Centers for Medicare and Medicaid Services (CMS) mandate for covered providers participating in the Medicare and Medicaid programs and others covered by the CMS mandate, decision under the Fair Labor Standards Act, Fifth Circuit chipped away under the prevailing presumption that plaintiffs are entitled to conditional attestation of class actions under a lenient standard of proof.
Also in 2021, revenue in the president’s administrations resulted in reversal of federal agency rules and enforcement priorities, developments that have a measurable impact on class responsibilities. At the state level, California lawmakers and plaintiffs’ attorneys continued to annoy employers, and Illinois courts in particular proved to be an ongoing hotbed of class-action lawsuits filed under the state Biometric Information Privacy Act.
The first weeks of 2022 have already brought remarkable developments on the class action front, and the Supreme Court has filled important cases up to arbitration. Vaccine mandate lawsuits will begin to find their way through the courts, which will begin issuing substantive class certification rulings that address issues of commonalities related to new factual scenarios. There will be a lot to discuss in upcoming issues. For now, we turn our attention to an eventful 2021.
and a mandate for federally funded Head Start programs. Vaccine mandates adopted by Democrat-led states and localities also face legal challenges.
Many private employers have adopted their own COVID-19 vaccination requirements for employees, sometimes in accordance with government directives, but more often on their own initiative. These mandates are also under fire in the courts. The Court’s submissions often challenge the mandate itself. In many cases, however, the plaintiffs challenge mandates such as used – inter alia, allegation that the defendant wrongly refused to grant a religious residence exempting the plaintiffs from the mandatory vaccination policy.
Challenges to class actions. So far, more than 450 complaints challenging various COVID-19 vaccine mandates have been filed, and about 60 of these complaints have been filed as suspected class actions. A majority of these class actions seek to invalidate private employer mandates. Like many vaccine mandate challenges, plaintiffs have filed injunctions (both TRO and interim injunctions) pending a decision on the merits of their class action lawsuits. Courts have been reluctant to order employers to enforce their mandates before resolving the dispute. Injunctions have been denied in 30 cases of class action with vaccine mandate and given only in two cases, both involving public entities.
Federal mandates. Courts have shown willingness to impose some government-issued vaccine mandates. For example, the Fifth Circuit U.S. Court of Appeals suspended enforcement of the OSHA ETS. The U.S. Court of Appeals for the Sixth Circuit dismissed the stay, but the U.S. Supreme Court overturned the decision of the Sixth Circuit and granted a temporary stay. The Biden administration has since withdrawn its enforcement of the OSHA ETS, but left its provisions in place to serve as a notice of proposed rule design for a permanent rule.
Meanwhile, a federal district court in Georgia has issued a provisional nationwide injunction halting the enforcement of vaccine requirements in Executive Order (EO) 14042 (although EO’s other requirements, such as masking and social distancing, remain in effect until further notice). USA
The Court of Appeals for the Eleventh Circuit has rejected the Biden Administration’s proposal to suspend the injunction pending its appeal of the lower court’s decision.
Other federal courts have also imposed EO 14042, but only within certain states. Most recently, a federal district court in Arizona issued one permanent injunction from the federal contractor mandate, but limited the scope of the injunction to Arizona. In addition, federal courts have blocked vaccine mandates for federal employees nationwide and Head Start providers in certain jurisdictions.
In contrast, the Supreme Court ruled in favor of the government, allowing the CMS vaccine mandate to continue. The CMS rule is now in force across the country, although lawsuits challenging the CMS mandate are pending in several courts, including the Fifth and Eighth Circuits.
Jackson Lewis PC © 2022National Law Review, Volume XII, Number 49