Globemaster2827

You'd make a very poor lawyer.... From ALPA legal.

CURRENT LEGAL STATUS UPDATE ON U.S. VACCINE MANDATES 9-24-21 We have received several questions asking whether employer-imposed COVID-19 vaccine mandates are lawful under U.S. law. The answer is, yes, an employer-imposed vaccine mandate is lawful. The Supreme Court decided in 1905 in Jacobson v. Massachusetts that a state could enforce compulsory vaccination laws, finding that mandatory vaccinations are neither arbitrary nor oppressive so long as they do not “go so far beyond what was reasonably required for the safety of the public.” Specifically, this case found that Massachusetts could require all members of the public to be vaccinated against smallpox on pain of criminal sanction for non-compliance. In 1922, the Supreme Court followed that ruling in its decision in Zucht v. King, which similarly rejected a suit seeking an injunction on constitutional due process grounds against application of an ordinance which required a vaccination certificate proving that the student was inoculated against smallpox to attend public schools. The law has remained consistent since this time. For example, more recently, with respect to COVID-19, the U.S. Court of Appeals for the 7th Circuit issued a decision that reaffirmed the Jacobson ruling in finding that a public university’s policy mandating vaccinations for students was lawful (Klaassen, et al. v. Indiana University). The plaintiffs in that case sought emergency Supreme Court review, which was denied by Circuit Justice Amy Coney Barrett on August 12. Cases such as these brought against government mandates involve potentially more complex questions of individual constitutional rights than the issue of whether a private employer can mandate a vaccine, which is governed by private contract and employment relationships that do not involve those personal constitutional rights. Nonetheless, those challenges to governmental vaccine mandates have failed to date. In June, the U.S. District Court for the Southern District of Texas also relied on Jacobson in finding that a private employer’s policy mandating COVID-19 vaccinations for employees was lawful (Bridges v. Houston Methodist Hospital). As noted, the Constitutional arguments with respect to government entities do not apply to the actions of private corporations. In dismissing this case, the district court rejected arguments that the vaccination mandate involved “forced” injections, reasoning that the employees were free to decline and find other jobs. That judge also rejected arguments based on the then Emergency Use Authorization (EUA) status of the COVID-19 vaccine. (Note: The Pfizer vaccine has since been given full FDA approval, mooting that argument as to that vaccine, and full approval of several others is expected soon. Other courts and federal administrative agencies have similarly concluded that the EUA status of the COVID-19 vaccines is not a bar to a vaccination requirement and that such mandates can lawfully be imposed as a job requirement, as we will address below). Prior to the Houston Methodist Hospital decision, the Fifth Circuit Court of Appeals in early 2020 (prior to the COVID outbreak) in Horvath v. City of Leander similarly rejected a challenge to a different vaccine mandate imposed by the city because, among other reasons, the objecting firefighter was not forced to take the vaccine and was free to accept a reasonable accommodation offered for his religious objections or to move to a different job instead. Another recent case of note involved a failed challenge by a group of United pilots to that company’s vaccination mandate, which does not offer an alternative of testing. The federal district judge in Florida, on his own motion in Hencey v. United, summarily dismissed the request for an emergency order to block the mandate on largely procedural grounds, but noted in 2 his decision that the request would likely fail even if the procedural defects were remedied, because the pilots could seek reinstatement and backpay, which would undercut the necessary showing of “irreparable harm” to support an injunction, and further because they would also be likely to lose on merits of the challenge to the mandate, given the consistent caselaw discussed above, including the Indiana University case. A state court in New York just reached a similar result in denying an injunction request by public employees, also citing the ability of the employees to seek reinstatement and backpay as a remedy. Additionally, the Equal Employment Opportunity Commission (EEOC) (which administers federal workplace anti-discrimination laws) has twice provided guidance that a COVID-19 vaccination requirement (even given an EUA vaccine status) does not unlawfully discriminate under the federal workplace discrimination statutes, so long as an employer offers reasonable accommodations to employees on medical or “sincerely held” religious belief grounds. (Note: the EEOC has determined that the question of reasonable accommodations, which involve individual claims of employees under the federal discrimination laws and are beyond ALPA’s representational authority under the Railway Labor Act (RLA) and collective bargaining agreements and are determined by the employer under the limits of EEOC guidance, requires evidence of a significant medical risk or a long-established institutional religious belief, as opposed to personal beliefs or opinions). The U.S. Department of Justice issued similar guidance that mandates involving EUA COVID19 vaccines were not inconsistent with the Food and Drug Act, the legislation that governs the approval authority of the Food and Drug Administration regarding vaccines. The above analysis only covers laws external to any collective bargaining agreement. A labor agreement may, depending on the specific provisions of the contract, limit an employer’s discretion regarding implementation of a vaccination mandate, including regarding any negative sanctions for employees refusing to take the vaccine. Those issues, including regarding effects, implementation and sanctions for failure to follow a vaccination mandate, should be resolved in bargaining, or in the absence of agreement, pursuant to the terms and dispute adjustment procedures of the CBA, before the system board of adjustment in arbitration. Unresolved issues not addressed in bargaining involving vaccination mandates are expected to be resolved in arbitration -- and not in court -- with regard to the impact of a collective bargaining agreement on the issue. The reason for this is the firm rule established by the Supreme Court of the United States in construing the RLA in 1989 in the Conrail v. CSX case. In that case, which involved mandatory drug testing by a railroad which was nowhere mentioned in the collective bargaining agreement, the Court ruled that as long as management could make an argument based on the contract or past practice to justify the imposition of the testing requirement that was not completely frivolous, the matter had to be submitted to the exclusive jurisdiction of the grievance arbitration machinery under the applicable collective bargaining agreement. The courts have consistently applied this principle to RLA cases and directed issues involving arguable interpretations of a labor agreement or past practice – even those which would likely or even clearly come out on the losing side -- to arbitration. 3 Aside from employer mandates, the federal government is likely to soon impose its own vaccination and/or testing mandates. President Biden announced two relevant Executive Orders and one directive. The September 9 Executive Orders apply to the federal employee workforce and to federal contractors, and those require employees and government contractor operations to be fully vaccinated for COVID-19, with no testing option. With regard to federal contractors, which include many U.S. airlines, the relevant Executive Order has established a Safer Federal Worker Taskforce to construct guidelines for COVID vaccination that are to be observed in new, renewed or newly extended federal contracts. Significant timing questions apply to this situation as the requirements should only be imposed when relevant federal contracts are newly made, come up for renewal, or options to extend are exercised. Under guidance received from the Taskforce today, which is set to be translated into and included as contract requirements in federal contracts going forward, it appears that the mandate – which will include vaccination requirements as well as certain masking and social distancing requirements for individuals who obtain a religious or medical exemption from the vaccination requirement, will go into effect for new, renewed or extended federal contracts by December 8, 2021. It does not appear at this time that the government will try to impose a contractor employee vaccination mandate mid-contract, which may pose legal issues, but rather be phased in over the next several months as applied to new, renewed or extended federal contracts. President Biden also issued a directive on September 9 to the Department of Labor’s Occupational Safety and Health Administration (OSHA), which is tasked with developing a rule for all private sector employers with 100 or more employees to ensure their workforce is fully COVID-19 vaccinated or require any workers who remain unvaccinated to produce a weekly negative test result. OSHA plans to issue an Emergency Temporary Standard (ETS) to implement this requirement, which takes effect immediately upon publication in the Federal Register. It is expected that it will take time for OSHA to develop a draft and publish the final emergency workplace safety rule. However numerous state governors and state attorneys general have indicated that they plan to challenge the implementation of any such OSHA Emergency Safety Standard on constitutional grounds relating to state/federal division of power issues. Further, under federal administrative law, the administration may have to show in such litigation that an emergency rule is necessary to respond to a “grave danger” facing employees, in lieu of the more drawn-out administrative process usually used for adopting a workplace safety rule in the normal regulatory course, which is subject to a lesser standard. We may learn more about the legal landscape with regard to the potential government mandate situation as this threatened litigation proceeds. It should also be noted that OSHA has jurisdiction over workplace safety regulations generally, but not onboard aircraft (with the exception of cabin air quality), as the other workplace safety issues on aircraft are within the FAA’s jurisdiction. An eventual OSHA rule could likely apply, however, to the other physical operations of an airline, which for pilots would include coverage for entry onto the carrier’s property such as crew 4 rooms, training centers, airport areas, and the like, so this OSHA rule once it is issued could impact pilots. We are hopeful that this information will provide useful background with respect to the relevant legal precedents and status of the current legal challenges to vaccine mandates.