No, I’m not making this up. And, spoiler alert, 🥴
As I meant to tell you on Tuesday, another reason that courts don’t overturn an employer’s mandatory vaccination policy is that they’ll generally defer to lawmakers to decide whether employers should have that power.
The only state I know that has passed a law forbidding discrimination on vaccination status is Montana.
As you know, on the federal level, President Biden has announced plans to mandate vaccinations (or regular testing) at private businesses with 100+ employees. For federal contractors and employees, there is no testing option.
Seemingly, it may take some legislation to put the kibosh to all of this.
The Biden Can’t Force Me Act would require that any COVID-19 vaccine mandate established by an Act of Congress or Executive Order must include an exemption for any individual who has a “sincerely held belief that inclines the individual to refuse the receipt of a COVID–19 vaccine.”
Title VII already requires employers to accommodate religious beliefs, practices, and observances if the beliefs are “sincerely held” (as long as the accommodation won’t impose any undue hardship on the business). But, the subtlety here is that the sincerely held belief in the Biden Can’t Force Me Act doesn’t seem to have to be religious. Ostensibly, anyone who feels strongly about not getting vaccinated could abstain.
The Don’t Jab Me Act would permit any “aggrieved individual” to sue the United States in federal court for injuries sustained due to a COVID–19 vaccination mandate (e.g., unemployment). An “aggrieved individual” is basically anyone whom the government forces to get vaccinated for COVID-19 as a condition of employment.
Now, before you start asking me, “Eric, what are the chances that either of these bills can advance in the Senate,” remember my spoiler alert.
Senator Lee tried to pass each measure by unanimous consent, which didn’t sit well with certain senators who objected. So, the bills are dead. Indeed, with Democrats effectively controlling the House and the Senate, it seems unlikely that any such bill would pass.
But, please don’t mistake this for a ‘political’ post. I’m merely highlighting how vaccine-mandate challenges can be presented. For example, another possibility is that anti-vaccine-mandate legislation comes from the states.
And challenges to vaccine mandates will continue to flood the courts. Although courts have upheld employer-instituted mandates, an OSHA emergency temporary standard (ETS) — a creature of Executive Order — is much different, making it susceptible to an injunction.