As I have repeatedly said, it is hard to keep track of all the covid vaccine mandate litigation, so once again here is where we are. This is going to be short and simple, and Much of the information comes from a recent post by the Alaska State government which is at the forefront with the other majority of the states that have challenged the 5 recent federal mandates.

Religious exemptions to covid vaccine mandates

As far as I can tell there is no majority opinion from any appellate court that there is a Constitutional right to a religious exemption to a vaccine mandate. That right was rejected by the courts in New York state when the New York legislature removed the religious objection.

Federal employment statutes recognize a religious accommodation to a vaccine mandate IF a reasonable accommodation can be made by the employer. Health care workers in two of the states which have disallowed a religious accommodation are currently litigating the failure to provide a religious accommodation. However, both the circuit courts which have addressed the issue have affirmed the state’s disallowance. The Supreme Court refused to take up these challenges in its shadow docket. The three hard-right justices would have heard the case now. The two not as hard-right justices (Barrett and Kavanaugh) wanted a fuller record before considering the case. The liberals and the Chief Justice just didn’t want to hear the case.

So, it is an open question whether there is either a constitutional or a federal statutory right for employers to have a religious exemption or required religious accommodation. I think the hard-right conservative justices will stay there is both and the three liberal justices will say there is neither. I think the Chief will be with the liberals so these cases will probably be decided by, I am guessing Justice Kavanaugh, and with will be 5-4 or 6-3 with him being in the majority. But that’s just my guess.

Outside of the employment context, I don’t think there is any appellate court decision that has held that there is a constitutional right to a religious (or personal belief) exemption say for public school or university students. That could change if the two not so hard right justices join their the hard-right brethren, but between their position on the above case, as well as the fact that Justice Kavanaugh sided with the liberals and the Chief on the CMS/Medicare and Medicaid federal mandate, I think that is unlikely unless this justice has a change of heart.

The New York School Mask Mandate

A stay of the Long Island preliminary injunction barring the enforcement of the public school mask mandated has been entered.
Meaning the mask mandate is in effect. I suspect that the mandate will stay in effect as this and similar cases wind their way through the appellate process.

The Federal Executive Branch mandates

There are five federal mandates:

OSHA for all large employers.

That mandate was stayed from going into effect by the Supreme Court. Today, the Biden administration announced that it was giving up on that one. Makes sense since as an emergency rule it had a limited time to be effective and litigating the case would take longer than the mandate would be in place. However, they are switching to a standard rulemaking process which will answer some of the concerns by the conservatives that the order was issued without input from the public via notice and comment. That won’t address the other perhaps bigger problem about whether the administration has the statutory power to do it under the existing OSHA statute.

CMS/Medicare and Medicade Vaccine Mandate

That mandate is currently in effect by order of the Supreme Court. The case will be returned and at some point, there could be a trial and a final injunction order issued by the district court. Or if they are clever, perhaps the plaintiffs can figure out a way to take it up on a second appeal.

The Federal Employee mandate

That mandate has been stayed by a district court in the Fifth Circuit. Expect the Fifth Circuit to uphold the stay/preliminary injunction.

Here is information from the state of Alaska about the other two mandates

Federal Contractor Vaccine Mandate

“On Oct. 29, 2021, Alaska and nine other states challenged the federal government’s vaccine mandate for federal contractors. Under the mandate, a private business of any size would be required to force its employees to be vaccinated for COVID-19 before the business could be awarded a new government contract or have an existing contract renewed. Federal agencies have also been seeking modifications to existing contracts and essentially forcing contractors, like the University of Alaska, to take them or lose the contract.

CURRENT STATUS: A federal judge in Georgia has blocked the mandate temporarily from taking effect nationwide.
TIMELINE

10/29/21 Alaska and other states file suit to block the federal contractor mandate – PDF(860KB)
11/04/21 Alaska and its counterparts ask the U.S. District Court to issue a preliminary injunction, which would block implementation of the mandate temporarily – PDF(263KB)
11/09/21 Alaska and other states ask the court to expedite its review of the case – PDF(85KB)
11/10/21 Federal government moves implementation date from Dec. 8, 2021, to Jan. 18, 2022.
11/18/21 Federal government files its response to states’ request for expedited review – PDF(361KB)
11/22/21 States reply to the federal government – PDF(150KB)
12/07/21 Federal judge in Georgia prevents federal government from enforcing the mandate nationwide – PDF(144KB)
12/10/21 States ask in their suit for order permanently halting the contractor mandate – PDF(142KB)

Head Start Vaccine Mandate

Alaska and 23 other states filed a lawsuit in U.S. District Court in Louisiana to block implementation of a COVID-19 vaccine and masking mandate at Head Start and Early Head Start centers across the country. This federal mandate would require Head Start employees, volunteers and any contractors who directly work with children to be vaccinated for COVID-19. It would also require masks for all, including children as young as 2.
TIMELINE

12/21/21 Alaska and other states sue to overturn Head Start mandate (635KB PDF) and file motion for preliminary injunction (278KB PDF) to block its implementation.
Memorandum in Support of Motion for Preliminary Injunction – PDF (376KB)
01/01/22 U.S. District judge in Louisiana issues preliminary injunction to block enforcement of vaccine and mask mandates in Alaska and other states participating in the legal challenge.
Head Start Mandate – Preliminary Injunction Ruling – PDF (348KB)”

Here is the link to the Alaksa page which has links to all the documents referenced therein. https://law.alaska.gov/department/vaccine-mandates.html

Hope this helps.

Rick Jaffe, Esq.