Some of the plaintiffs, such as employees of the New York City Department of Education, a handful of Los Angeles County public employees and United Airlines employees, argued that the warrants should be removed, handing over questioning the constitutionality of the rules and some claiming that their religious rights were not observed.
So far, these arguments have not swayed the judges, who have almost all ruled in favor of the employer, or have not issued lengthy injunctions while they hear the case. And legal experts told ABC News they didn’t expect different results in courtrooms anytime soon.
Glenn Cohen, professor of health law and bioethics at Harvard Law School, told ABC News that a strong legal precedent dating back to the turn of the 20th century gives businesses and governments the legal backing they need to uphold mandates. .
“They’re pretty weak,” Cohen said of the lawsuits. “The judges who denied them came from all political backgrounds and across the country, because the plaintiffs’ arguments have no weight. “
Cohen and other academics who have followed the cases predict that there will be fewer prosecutions against the warrants as more cases are dismissed. However, they warned that there was a potential legal battle over how companies accept religious exemptions for vaccinations, as this issue has not been settled by the Supreme Court.
Cohen stated that the Jacobson v. Massachusetts Supreme Court of 1905 ruled that state legislatures are authorized to issue warrants on vaccines. Decision 7-2 dealt with Massachusetts’ vaccination mandate for the smallpox vaccine.
And a July 2021 decision from the Justice Department’s legal counsel’s office also gave companies the legal backing to invoke a COVID-19 vaccine warrant for their employees.
Dorit Rubinstein Reiss, a law professor at UC Hastings College of the Law, who has written about the legality of vaccine warrants in legal journals, told ABC News that previous lawsuits over the COVID-19 vaccine warrant argued that the orders were unconstitutional since the three available vaccines were only authorized in emergencies by the Food and Drug Administration (FDA).
None ended up being successful, she said.
This argument lost ground in the courts after the FDA fully approved the Pfizer vaccine in August, she noted.
“If you’re at the point where you’re saying it’s like the Nuremberg trials and the vaccines are experimental and could be dangerous, you don’t have a good example,” Reiss said.
Reiss said the reasonable accommodation provision of the Civil Rights Act of 1964 requires employers to make special accommodations to employees, such as those based on religious beliefs.
“It is a statutory right, not a constitutional right,” she said.
Cohen, a former Justice Department appeals lawyer, added that public and private employers have given their members leeway to seek religious and medical exemptions, and for the most part have been accommodating. In some of the cases Cohen observed, plaintiffs used the religious exemption argument against their employer, but judges dismissed the cases citing lack of substantial evidence that their faith was being targeted.
“They claim religious exemptions, but the underlying religion in question does not provide an exemption,” Cohen explained.
Potential battle over religious exemptions
A company’s vaccine tenure policy, however, has led to what Cohen sees as an interesting legal battle.
A group of United Airlines employees, including a pilot and a flight attendant, filed a complaint last week against the airline over its vaccination mandate, claiming the company policy of placing on “unpaid leave for an indefinite period” for non-vaccination was detrimental to their livelihoods. . The plaintiffs say they are refusing vaccinations because of their religious beliefs, according to the lawsuit.
United, which said more than 98% of its staff are complying with the mandate, defended its policy in a statement saying “vaccine requirements have been around for decades and have served to keep employees and customers safe. airlines ”.
Cohen said the Jacobson case did not cover religious exemptions and the Supreme Court had yet to rule on how those exemptions applied to vaccination warrants. He said that in the US lawsuit, the argument centered on work arrangements for unvaccinated employees and not on the tenure itself, so there may not be a major decision that changes the game.
“We’ll have to see how it goes,” he said. “If it turns out, at the end of the day, [United Airlines isn’t] going to put them back on a plane, they are likely to face more litigation, ”he said.
Reiss predicted that the issue of religious exemptions would eventually reach the Supreme Court, but it’s unclear whether the court will consider a case. Last week, the Supreme Court dismissed a request by New York City education workers to hear their case against the city’s vaccination mandate after several lower courts ruled against the plaintiffs.
Reiss and Cohen believe that as more and more cases are dismissed and judges make firm decisions, lawyers will not have enough of a foundation to bring cases to fruition.
“It will be easier for the courts to point out the losses and more easily dismiss the news,” Cohen said. “I think you’ll see fewer lawyers dealing with these cases as well. “
Reiss added that the warrants showed an increase in vaccination rates in public and private companies, especially in the days leading up to their employer’s compliance deadline. In most cases, such as the New York, North Carolina and California hospital systems, vaccination rates among staff exceeded 95% when the deadline arrived.
“The warrants will have some impact regardless of what goes on in the courts,” Reiss said.