Biden vaccine rule sets stage for onslaught of lawsuits

President BidenJoe BidenTrump endorses challenger in Michigan AG race On The Money: Democrats get to the hard part Health Care — GOP attorneys general warn of legal battle over Biden's vaccine mandate MORE’s vaccine rule for federal employees is expected to bolster efforts to require vaccines in the workplace, but experts say it's also likely to spark court fights that could threaten the long-standing legal authority of employers to impose health measures at work.

As the largest employer in the country, the federal government could end up setting the standard for the private sector with Biden’s requirement that workers undergo regular testing, wear masks and socially distance if they choose not to get vaccinated.

A day after Biden announced the new approach, the Walt Disney Co. said all of its employees would need to be vaccinated within two months. Walmart, the nation’s largest private employer, said it would require vaccinations for workers at its Arkansas headquarters.

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But a number of public unions have pushed back on Biden’s plan — a sign that companies are likely to face similar resistance, even if their workers aren’t unionized.

Some legal experts worry that a landmark case from 1905 that has long protected vaccine mandates will come under attack amid increased scrutiny of public health laws requiring vaccines in settings like schools that have had rules in place for decades.

“The issue now is the unpredictability of the conservative six on the current Supreme Court and the shadow docket opinions that are coming out of them that seem to be favoring the restrictions on public health authority to tamper with anything on religious liberties, for example,” said Gene Matthews, who spent 25 years as chief legal officer at the Centers for Disease Control and Prevention and who is now a professor at University of North Carolina.

“If you go back to the original 1905 decision in Jacobson v. Massachusetts that has stood now for almost 120 years, one of the doctrines was that reasonable vaccination requirements by public health officials are part of the duty of protecting the public against a particular dangerous disease and are good law, and that's all being thrown into question.”

So far, vaccine requirements have had some early wins in court.

A federal judge in Texas shot down a suit from health care workers at a Houston hospital that required its employees to be vaccinated. The case has been appealed to the 5th Circuit.

And a federal judge in Indiana blocked a challenge to an Indiana University rule mandating both students and staff get the vaccine, with the 7th Circuit Court of Appeals upholding that decision Monday. The attorney for the students who filed the lawsuit said they would be appealing to the Supreme Court “shortly,” Reuters reported.

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As such cases make their way closer to the high court, Matthews fears that the “north star of Jacobson is seeming to flicker in the face of six Supreme Court justices that may wade right into that established precedent and peel it back or reverse it.”

In other cases on various pandemic-related restrictions, the Supreme Court has pushed back against state limitations.

“It's on religion that the court has really slapped down public health in the last year,” said Scott Burris, director of the Center for Public Health Law Research at Temple University.

He pointed to a California case where justices sided with the South Bay Pentecostal Church in its challenge to restrictions placed on in-person worship.

Chief Justice John Roberts pointed to the Jacobson case, filed by a pastor fighting a Massachusetts vaccine requirement amid a smallpox outbreak, in an opinion on the California case that largely suggested following public health officials — within reason.

“I think Justice Roberts is actually quite an interesting focal point of all this and in these decisions he talks about Jacobson, but ... he gets frustrated when public health scientists don't give him the good evidence and good reasoning that he needs to defer. ... If you can't point to evidence and clearly articulate the different distinctions they are making, at that point you don't need to defer,” Burris said.

“There are several justices that think it's an irrelevant relic of the past, but I think there are five that appreciate the broad point that Jacobson rested on, which is in an emergency we probably want to defer to the reasonable judgement of public health officials,” he said.

But Burris also sees such requirements, particularly those enacted by private employers, as key to battling the pandemic over a general vaccine requirement from the government given that they’ve largely been upheld.

“Having employers mandate vaccines for workers is going to avoid a lot of legal challenges that can emerge from the government doing it, and I think it may be fastest,” he said.

Such efforts have already been greenlighted by various agencies. The Equal Employment Opportunity Commission last year issued guidance saying employers are well within their rights to make such a request of employees, while Justice Department guidance from the Office of Legal Council affirmed last month that entities could require the vaccine even though it was approved by an emergency use authorization.

For some, that’s enough to ward off challenges, even with a Supreme Court that shifted to the right under the Trump administration.

“It’s clear that even under an emergency use authorization this is a lawful act. It’s also ethically right," said Larry Gostin, professor of global health law at Georgetown University, adding that Biden is on “very solid ground" legally.

“But there will be legal challenges. America is a highly litigious country and people will go to the courts to try to overturn what President Biden has done. But they won’t be successful, even with a very conservative court,” he added.

Defense of Biden’s rule will likely hang, in part, on the extent to which the president accommodates those who refuse to get the vaccine.

Vaccine requirements typically allow exemptions for religious or medical reasons.

Biden’s policy doesn’t specify any exemptions, instead allowing anyone who chooses not to vaccinate to undergo once or twice weekly testing and may face travel restrictions alongside the masking and social distancing requirements. It is unclear when the policy will take effect.

Still, some who are opposed to Biden’s approach have argued it would infringe on their rights.

“Forcing people to undertake a medical procedure is not the American way and is a clear civil rights violation no matter how proponents may seek to justify it,” the Federal Law Enforcement Officers Association said in a statement last week.

Daniel Mach, director of the American Civil Liberties Union Program on Freedom of Religion and Belief, said while employers typically have to accommodate exemptions, they aren’t enough to spike precedent.

“Vaccination requirements can have civil liberties implications, but you don't have an unfettered right to harm others and threaten the public health,” he said.

“I don't see signs from the court questioning the government's general ability to act here. You may see quibbling on the margins over what exemptions or accommodations are appropriate in any particular situation, but on the threshold question — ‘Are some vaccination requirements during a pandemic permissible?’ — nothing suggests that the court’s answer would be ‘no.’”

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For Matthews, if courts don’t uphold deference to public health officials, it will be another move in a trend of shifting such work to elected officials.

“For those doing that or think that's a good idea, they need to be careful what they pray for,” he said.

“Because there's a reason that public health boards have held up and were originally set up by politicians a century ago in order to give the politicians political cover for having to make lose-lose political decisions.”

Morgan Chalfant contributed to this report.