In our experience, most employers outside of the health care industry have largely lost interest in mandating COVID-19 vaccinations. Given the less lethal variants that cause most current infections, along with lowered rates of serious hospitalization and death, many employers have concluded that the benefits of mandating vaccinations are outweighed by the costs and employee resistance. With that said, federal courts continue to consider the legality of mandates put into place during earlier stages of the pandemic.
Last week in State of Georgia v. President of the United States, the Eleventh Circuit Court of Appeals narrowed a preliminary injunction issued in response to a challenge to President Joe Biden’s COVID-19 vaccination mandate for employees of federal contractors. The original injunction applied nationwide, but after further consideration, the court limited the injunctive relief to states (including Georgia and South Carolina) that were plaintiffs in the lawsuit. The Eleventh Circuit generally criticized nationwide injunctions, noting that the uniformity of results is outweighed by the fact that relief should be limited to the parties who actually challenge the law or regulation at issue. The court indicated (with a dissent) that the plaintiffs were likely to prevail on the merits of the claim, but made no final judgment on this point.
Earlier this week, the Seventh Circuit Court of Appeals rejected a challenge to state and local government COVID-19 vaccine mandates. In Lukaszczyk v. Cook County, the court affirmed the rejection of a request for injunctive relief based on due process and religious discrimination claims. Responding to the religious discrimination claims, the Seventh Circuit noted that the plaintiffs never offered evidence that the employers’ religious exemption procedures caused discrimination as actually applied.
Despite the waning enthusiasm for vaccine mandates, this litigation is likely to continue. State and federal governments view this litigation as a challenge to their ability to respond to future emergencies and will seek to preserve these options going forward.