Sat. May 21st, 2022

Some of the plaintiffs, e.g. New York City Department of Education staff, a handful of Los Angeles County staff and United Airlines staff have argued that the mandates should be removed, calling into question the constitutional rules and some claiming their religious rights were not observed.

So far, these arguments have not affected judges, who almost all have ruled in favor of the employer or have not issued lengthy injunctions while hearing the case. And legal experts tell ABC News they do not expect different results in courtrooms anytime soon.

Glenn Cohen, a professor of health law and bioethics at Harvard Law School, told ABC News that strong legal precedents from the early 20th century give companies and governments the legal backing to enforce the mandates.

“They’re pretty weak,” Cohen said of the lawsuits. “The judges who have denied them have come from across the political spectrum and from across the country because the plaintiffs’ arguments have no weight.”

Cohen and other researchers who have overseen the cases predict that there will be fewer cases against the mandates as more cases are thrown out. However, they warned that there is a potential court dispute over how companies meet religious exemptions for vaccinations because that issue has not been decided in the Supreme Court.

Long precedent

Cohen said the 1905 Supreme Court case Jacobson v. Massachusetts ruled that state lawmakers are allowed to issue vaccine mandates. The 7-2 decision addressed Massachusetts’ vaccination mandate for the smallpox vaccine.

And a July 2021 ruling from the Department of Justice’s Legal Advice Office also gave companies the legal backing to invoke a COVID-19 vaccine mandate for their employees.

Dorit Rubinstein Reiss, a law professor at UC Hastings College of Law who has written about the legality of vaccine mandates in law journals, told ABC News that previous COVID-19 vaccine mandate lawsuits claimed the orders were unconstitutional since the three available vaccines were only approved for emergency use by the Food and Drug Administration (FDA).

No one ended up being a success, she said.

This argument lost ground in courts after the FDA fully approved the Pfizer vaccine in August, she noted.

“If you’re at the point where you say this is similar to the Nuremberg trials and the vaccines are experimental and can be dangerous, you do not have a good example,” Reiss said.

Reiss said the reasonable adjustment provision in the Civil Rights Act of 1964 requires employers to make special adjustments to employees, e.g. Those based on religious beliefs.

“It’s a statutory right, not a constitutional right,” she said.

Cohen, a former DOJ appeals lawyer, added that public and private employers have given leeway to allow their members religious and medical exemptions, and for the most part have been accommodating. In some of the cases, Cohen noted that plaintiffs have used the religious exemption argument against their employer, but judges have dismissed the cases citing the lack of substantial evidence that their faith was targeted.

“They claim religious exceptions, but that underlying religion does not provide an exception,” Cohen explained.

Potential battle for religious exceptions

However, a company’s vaccination mandate policy has led to what Cohen sees as an interesting court battle.

A group of United Airlines employees, including a pilot and flight attendant, last week filed a lawsuit against the airline over its vaccine mandate, claiming that the company’s policy of placing them on “an indefinite period of unpaid leave” to be unvaccinated harms their livelihoods. . The plaintiffs claim that they refuse vaccinations because of their religious beliefs, the case states.

United, which said over 98% of its staff complied with the mandate, defended its policy in a statement saying “vaccine requirements have existed for decades and have served to keep the airline’s employees and customers safe.”

Cohen said the Jacobson case did not cover religious exceptions, and the Supreme Court has not yet ruled on how those exceptions play out with vaccine mandates. He said in the United trial that the argument is centered on job adjustments for the unvaccinated staff and not the mandate itself, so there may not be a major game-changing decision.

“We’ll have to see how it goes,” he said. “If it turns out, at the end of the day, [United Airlines isn’t] will put them back on a plane, they will likely face more lawsuits, ”he said.

Reiss predicted that the issue of religious exceptions would eventually reach the Supreme Court, but it is difficult to know whether the court will review a case. Last week, the Supreme Court rejected a request from education workers in New York to hear their case against the city’s vaccine mandate, after several lower courts ruled against the plaintiffs.

Reiss and Cohen believe that as more cases are dismissed and judges make strong decisions, attorneys will not have enough basis to have successful cases.

“It will be easier for courts to point out the losses and make it easier to dismiss the new ones,” Cohen said. “I think you’ll also see fewer lawyers taking up these cases.”

Reiss added that the mandates have been shown to increase vaccination rates in public and private companies, especially in the days leading up to their employer’s compliance deadline. In most cases, such as hospital systems in New York, North Carolina and California, the vaccination rate among employees ended above 95% when the deadline came.

“The mandates will have some impact no matter what happens in the courts,” Reiss said.

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