With the surge in COVID cases due to the delta variant, federal courts have upheld a vaccine requirement imposed by Indiana University that was challenged by a group of students. Employers from all sectors are increasing vaccine requirements as well as imposing masking and testing protocols for those who are not vaccinated. A bill also has been introduced in Congress to provide paid leave following a pregnancy loss.

Federal Courts Uphold University Vaccine Requirement – The U.S. District Court for the Northern District of Indiana upheld a vaccine requirement instituted by the University of Indiana that required all students, faculty and staff to be fully vaccinated before returning to campus for the fall 2021 semester.

The university’s vaccine requirement provided exemptions for either medical or religious reasons. The U.S. Court of Appeals for the Seventh Circuit denied a request for an injunction pending appeal of the District Court’s decision. The United States Supreme Court also rejected the request for an injunction without issuing an opinion. Another federal district court recently upheld a hospital’s vaccine requirement for its employees in the case of Bridges v. Houston Methodist Hospital, which was discussed in a previous blog post.

The case, Ryan Klaasen v. The Trustees of Indiana University was brought by eight students who do not want to be vaccinated and challenged the university’s mandate. The students brought the case under the Fourteenth Amendment and sought a preliminary injunction.

The District Court recognized that unless vaccinated or applying for a medical or religious exemption, the students faced serious consequences since they could be deprived of attending the university during the 2021 fall semester. Those who received exemptions are required to undergo twice weekly testing, quarantine if exposed to someone who has tested positive, wear a mask in public spaces, and return to their permanent address or quarantine if there is a serious outbreak of COVID-19. The court noted that the students had other options including attending another university or attending online classes.

In finding the policy reasonable under the Constitution, the court concluded that Indiana University’s policy was not “forced vaccination”. The court stated that “for certain students this may prove a difficult choice, but a choice, nonetheless. The choice isn’t so coercive as to constitute irreparable constitutional harm.” The court noted that the university has a legitimate interest in promoting the health of its campus communities, including students, faculty and staff and its vaccination policy is rationally related to ensuring the public health.

Additionally, the fact that the policy was time limited to just the upcoming fall semester was another factor in its favor.

In denying the request for an injunction, the Seventh Circuit noted that in the 1905 case of Jacobson v. Massachusetts, the U.S. Supreme Court ruled that a state could require smallpox vaccinations without any exceptions for adults. By contrast, Indiana University provided for medical and religious exceptions, and it is not “constitutionally problematic” to require those who qualify for exceptions to wear masks and be tested.  The Seventh Circuit believed that vaccinations are common requirements to attend universities and that “Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at a university, close contact is inevitable.”

Federal Government Issues COVID-19 Workplace Safety Principles – On July 29^th, the Safer Federal Workforce Taskforce issued Agency Model Safety Principles for the federal government. Federal agencies will need to ask about the vaccination status of federal employees and contractors who need to attest to their vaccination status or be treated as not fully vaccinated for purposes of safety protocols.

Those employees and contractors who are not fully vaccinated must be tested up to twice weekly, wear a mask, physically distance, and are subject to official travel restrictions. Those federal employees and contractors who are fully vaccinated do not need to physically distance, be tested, and are not subject to restrictions on official travel. Those federal employees who work in areas of high transmission will need to wear a mask while inside federal buildings.

A growing list of private and public sector employers are imposing vaccine requirements and masking/testing rules for those not vaccinated for all or a portion of their workforces. Such companies as Google, Facebook, Walmart, Walgreens, Disney, Morgan Stanley, Goldman Sachs, Uber, Twitter and several state and local governments are implementing vaccine policies. Several states have passed laws restricting employers from requiring COVID-19 vaccinations.

The Justice Department issued an opinion indicating that Section 564 of the Food, Drug and Cosmetic Act would allow employers to require vaccinations that have been approved by the Food and Drug Administration under an Emergency Use Authorization. The Equal Employment Opportunity Commission issued guidance in May 2021, that “In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.” 

Bill Would Require Paid Leave Following Pregnancy Loss – The “Support Through Loss Act” (S.2390, H.R.4576) introduced by Senator Duckworth (D-IL) and Representative Pressley (D-MA) would require that employers provide at least three days of paid leave for employees who are dealing with a pregnancy loss. According to Representative Pressley, “Our bill sends a message to families that they are not alone and would support those experiencing the loss of a pregnancy by providing them with the resources, workforce supports and care necessary to recover and heal.”

On the first workday of the year, employees would accrue 24 hours of paid leave for losses that are pregnancy related. Unused leave would not carryover to a subsequent year. Employers who already provide an equivalent amount of leave would not be required to provide an additional 24 hours of leave.

Additionally, the bill would direct the U.S. Department of Health and Human Services to develop information regarding the incidence and prevalence of pregnancy loss and would provide $45 million annually to the National Institutes of Health for federal research into miscarriage and pregnancy loss. The legislation has been referred to the Senate Committee on Health, Education, Labor and Pensions and the House Committee on Education and Labor.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.