As more governments and employers across the country begin to impose mandatory vaccination requirements as a condition of returning to the physical workplace or classroom, legal challenges to such policies are inevitable. Fortunately, a recent decision from the United States Court of Appeals for the Seventh Circuit provides a timely preview of the issues such lawsuits are likely to raise. Klaassen v. Trustees of Indiana University, No. 21-2326 (7th Cir. Aug. 2, 2021).
The case involved a challenge to Indiana University (IU)’s requirement that all students be vaccinated against COVID-19 unless they have a religious or medical objection to the vaccine, or take their classes entirely online. Exempt students were required to wear masks and be tested for COVID-19 twice per week. Eight students, including seven who qualified for the religious exemption, asked a federal court to prevent IU from imposing the vaccination requirement, arguing that IU’s new conditions on attendance violated the students’ right to due process.
The trial court denied the students’ request for a preliminary injunction, and both the Seventh Circuit and the Supreme Court upheld the denial. The Seventh Circuit’s three-and-a-half-page decision by Judge Frank Easterbrook relied primarily on a 116-year-old case, Jacobson v. Massachusetts, 197 U.S. 11 (1905), which sustained a criminal fine for refusing to be vaccinated against smallpox in defiance of a state public health order. The Seventh Circuit explained that the case against IU was even easier than Jacobson because students with religious or medical objections “just need to wear masks and be tested,” or they can attend school somewhere that does not require vaccines. The Seventh Circuit concluded: “we do not think that the Constitution forces the distance-learning approach on a university that believes vaccination (or masks and frequent testing of the unvaccinated) will make in-person operations safe enough.”
After the Seventh Circuit issued its decision, the students filed an application for emergency injunctive relief in the Supreme Court of the United States. Among other things, the students asked the Supreme Court to determine whether the vaccine mandate should be subject to “heightened” judicial scrutiny — as opposed to the relatively deferential “rational basis” test that the Seventh Circuit had used. Justice Amy Coney Barrett denied the students’ request, though she did not issue a written decision explaining the basis for the denial.
While the Delta variant of the virus is more contagious than previous variants, research so far has concluded that vaccination renders this variant of the virus, like other variants, less dangerous to those who contract it. And, with full FDA approval of the Pfizer-BioNTech mRNA COVID-19 vaccine expected in the next month, we expect mandates will increase in private and public settings.
It remains to be seen whether future legal challenges to vaccine mandates will prove more successful than the suit against IU did. However, there is much for employers to like in the Seventh Circuit’s decision. In particular, the case highlights that requiring unvaccinated individuals to wear masks and get tested for COVID-19 frequently may be considered a reasonable accommodation for religious or medical concerns an employee raises in response to a vaccine requirement. The case also shows that courts may be relatively deferential to an institution’s efforts to curb the spread of COVID-19 through a mandatory vaccination policy.
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