As the world closes in on the two-year anniversary of the beginning of the COVID-19 pandemic, and in the face of stagnating rates of vaccination, governments and employers anxious to return to “normal” have been increasingly requiring that workers be vaccinated against the virus. Amid this uptick in government and private employer mandates, however, some states have pushed back, enacting their own legislation to prohibit state and local governments and/or private businesses from requiring that employees be vaccinated. Others are suing the federal government to stop the federal employee and contractor vaccine mandate and the federal Occupational Safety and Health Administration (OSHA) emergency regulation for large employers (those with 100 or more employees).

In addition to the most recent efforts highlighted below, legislators in a number of other states have introduced legislation seeking to prohibit vaccine mandates. To date, however, little or no action has been taken on these bills. Further, a number of governors have issued orders, some barring vaccine mandates for state and local government employees, while Governor Abbott of Texas issued an order in mid-October declaring that no entity in Texas can compel receipt of a COVID-19 vaccination by any individual, including an employee, who objects to such vaccination for any reason of “personal conscience,” based on a religious belief, or for medical reasons, including prior recovery from COVID-19.

Federal Contractor Vaccine Mandate Lawsuits

The following are some notable lawsuits filed in response to the various COVID-19 mandates:

• Joint Lawsuit (10 States): On October 29, 2021, 10 states (Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming) filed a lawsuit in the United States District Court for the Eastern District of Missouri against the Biden administration seeking to nullify the September 9 Executive Order 14042 and related government guidance (“the Biden Executive Order”).  The lawsuit alleges in 12 counts that by imposing a vaccine mandate on federal contractors, the Biden Executive Order usurps the states’ police powers, violates the Tenth Amendment and federalism, violates the Procurement Act, violates the Administrative Procedure Act, and is an unconstitutional exercise of spending power.
• Joint Lawsuit (7 States): That same day, on October 29, seven other states (Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia) filed a separate lawsuit in the United States District Court for the Southern District of Georgia against the Biden administration, seeking similar redress.
• Florida Lawsuit: On October 28, 2021, Governor DeSantis announced Florida had filed a lawsuit in the United States District Court for the Middle District of Florida seeking a preliminary injunction against the Biden administration’s federal contractor vaccine mandate. The Florida lawsuit alleges the mandate did not follow requirements of the Administrative Procedure Act and the Federal Property and Administrative Service Act. The lawsuit makes constitutional claims as well.
• Texas Lawsuit: Also on October 29, the Texas Attorney General announced that Texas had filed a lawsuit in the United States District Court for the Southern District of Texas challenging the Biden Executive Order. The Texas lawsuit alleges similar counts as the joint state lawsuits.

Other State Pushback on Vaccine Mandates

Arizona Lawsuit: On October 22, 2021, the Arizona Attorney General announced that Arizona had filed a First Amended Complaint to the original lawsuit it filed on September 14 in the United States District Court of Arizona, challenging both the Biden Executive Order as well as the federal OSHA regulations (which had not been issued at the time of either filing). The Arizona lawsuit alleges violations of the Procurement Act and Procurement Policy Act; violations of the Administrative Procedure Act; violations of the statutes governing Emergency Use Authorizations; violations under the Fifth, Tenth, and Fourteenth Amendments; and violations of parole policies governing non-citizens.

Arkansas Legislation: On October 7, 2021, the Arkansas Legislature delivered House Bill 1977/Senate Bill 739 to Governor Hutchinson. The legislation would require employers to provide specific exemptions to any vaccine mandate for COVID-19. Specifically, employers would be required to allow an exemption if an employee were to produce (1) a negative antigen detection test result or molecular diagnostic test result no more than once per week showing the employee is not positive for COVID-19; or (2) proof of immunity from the virus including by the presence of antibodies, T cell response, or proof of a positive COVID-19 test, twice per year not to exceed once every six months from a licensed healthcare provider.

This means that Arkansas employees would be able to avoid vaccination if they produced a negative COVID-19 test once per week or purported to show proof of antibodies from a prior COVID-19 infection at most twice per year. The CDC has repeatedly advised that individuals should get vaccinated even if they have previously been infected with COVID-19, because vaccination offers a higher level of protection than any antibodies from a previous COVID-19 infection.

On October 13, Governor Hutchinson indicated that he would neither sign nor veto this legislation. The governor expressed his opposition to the legislation but indicated he is not vetoing it because taking no action means that the bills will not become law until January 13, 2022.

Florida Special Legislative Session: On October 29, Governor DeSantis issued a Proclamation calling on the members of the Florida Legislature to announce a Special Session to consider legislation that would, among other things:

• Protect current and prospective employees against unfair discrimination on the basis of COVID-19 vaccination status and ensure robust enforcement for this protection;
• Ensure educational institutions and government entities are prohibited from unfairly discriminating against current and prospective employees, students, and residents on the basis of COVID-19 vaccination status;
• Ensure that employees improperly denied employment on the basis of COVID-19 vaccination status can be eligible for reemployment benefits and, if needed, ensure that employees injured by a COVID-19 vaccination taken pursuant to a company policy are covered by workers’ compensation;
• Appropriate a sufficient amount of funds to investigate complaints regarding COVID-19 vaccination mandates and to take legal action against such mandates, including mandates imposed by the federal government;
• Direct the state to evaluate whether it should assert jurisdiction over occupational safety and health issues for government and private employees.

The special session has been scheduled for November 15-19, 2021.

Iowa Legislation: On October 29, Governor Reynolds signed House File 902 which, among other things, severely restricts employers’ ability to deny employees’ religious or medical exemptions related to the COVID-19 vaccine and ensures that employees discharged from employment for refusing a COVID-19 vaccine are entitled to benefits. Specifically, the law allows employees to avoid a vaccine mandate simply by submitting a statement that receiving the vaccine would be injurious to their “health and well-being” or to the health and well-being of an individual residing with the employee, or a statement that receiving the vaccine “would conflict with the tenets and practices of a religion of which the employee is an adherent or member.”

Tennessee Legislation: On November 2, 2021, the Tennessee Legislature transmitted to Governor Lee House Bill 9077/Senate Bill 9014, which seeks to take a number of broad actions against COVID-19 vaccine mandates, including:

• Prohibiting a private business or school from compelling a person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine “for any reason.”
• Prohibiting a private business or school from requiring proof of vaccination as a condition of access to the private business’ or school’s premises or to receiving the benefits of a private business’s or school’s products or services.
• Providing a private right of action for injunctive relief and compensatory damages, as well as attorneys’ fees, for violations of these provisions.
• Barring liability against a person for loss, damage, injury or death arising from COVID-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by gross negligence or willful misconduct. This provision would not affect workers’ compensation claims, however.
• Allowing a private business, government entity, school, or employer to submit notice in writing to the comptroller of the treasury that compliance with the legislation would result in the loss of federal funding, to the extent such an exemption is necessary to conform to federally awarded or amended contracts, subcontracts, or post-secondary grants as a condition to receipt of federal funds. In such a case, the comptroller would review the notice and, if the comptroller found that compliance would result in the loss of federal funding, the comptroller would provide the business or other entity with an exemption in writing. Exemptions would need to be renewed on a yearly basis.

It is not yet known if or when Governor Lee will sign the legislation. The legislation would take effect immediately upon becoming law.

Many questions remain regarding these state legislative efforts, including the details of the requirements imposed and how they will be interpreted, as well as how the lawsuits filed will fare in court.  Regardless, businesses with employees in these states will be forced to contend with how to proceed in the face of conflicting federal and state government mandates regarding COVID-19 vaccination and testing.