18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 563 the military vaccination mandate, as applied to the Guard, constituted a Fourth Amendment seizure. The Court concluded that the public interest not would be served by entry of an order prohibiting the implementation of a vaccine shown to be effective in mitigating the effects of the pandemic that had affected millions of Americans, including thousands of service members. Id . at *38. The Court thus determined that “the public's interest in military readiness outweighs the interests claimed by the Plaintiffs.” Id . For these reasons, the Court denied Plaintiffs’ motion for a preliminary injunction. State Of Texas, et al. v. Becerra, 2021 U.S. Dist. LEXIS 239608 (N.D. Tex. Dec. 15, 2021). Plaintiffs, the State of Texas and several state agencies, filed suit seeking a preliminary injunction barring implementation of the COVID-19 Center for Medicare & Medicaid Services (“CMS”) Mandate. The CMS Mandate, which affects over 10 million healthcare workers in the United States, requires the staff of 21 types of Medicare and Medicaid providers to receive the COVID-19 vaccine. Failure to comply with the CMS Mandate could result in penalties, including termination of the Medicare/Medicaid provider agreement. On November 30, 2021, the U.S. District Court for the Western District of Louisiana issued a nationwide preliminary injunction of the CMS Mandate. On December 15, 2021, the Fifth Circuit narrowed the nationwide preliminary injunction to only apply to 14 states, not including Texas. Id . at *4-5. As to this case, the District Court held an emergency hearing on the preliminary injunction, and ruled that the preliminary injunction should be granted. In developing the CMS Mandate, the District Court explained that Defendants relied on 42 U.S.C. § 1302 (“Section 1102”) and 42 U.S.C. § 1395hh ("Section 1871") of the Social Security Act ("SSA") to claim "broad statutory authority to establish health and safety regulations," including "the authority to establish vaccination requirements." Id . at *12-13. Defendants argued that the CMS Mandate was an action grounded in such "broad statutory authority" because it was "reasonably related to the purposes of the enabling legislation." Id . at *13. The District Court noted Sections 1102 and 1871 of the SSA give the HHS Secretary authority to make rules to ensure the efficient administration of programs "of the functions with which each is charged" and as "may be necessary to carry out the administration of the insurance programs." Id . at *14. The District Court applied the "major questions doctrine" to determine whether the CMS’s agency action was based on a permissible construction of an ambiguous statute, and considered: (i) the purpose behind the implementation of Medicare and Medicaid programs; (ii) the plain meaning of the statutory sections wherein Defendants claimed broad authority; and (iii) the sweeping intrusion into state police powers that the CMS Mandate would allow. Id . In so doing, the District Court reasoned that it was "implausible in light of the statute and subject matter in question that Congress authorized such unusual agency action." Id . The District Court found that the "health and safety" the HHS Secretary may consider in rulemaking did not extend to conditioning employment on vaccine compliance and was limited to "infection prevention and control standards." Id . at *16. The District Court observed that Congress limited the Secretary’s authority in this respect, such that the Mandate exceeded that given authority, such that Plaintiffs were likely to succeed on the merits of their claim. The District Court further indicated that Plaintiffs proved through affidavits that the CMS Mandate posed a substantial threat of irreparable harm by compromising the ability of "providers and suppliers" to offer essential healthcare services and a full range of care for vulnerable communities across Texas. Id . at *40. The District Court also found that Plaintiffs provided particular and tangible evidence that they would endure irreparable harm to their economic, healthcare, and liberty interests should the injunction be denied. In addition, the District Court determined it was in the public interest for Plaintiffs to maintain the status quo of encouraging, but not mandating, the vaccine in light of the staffing crisis. Id . at *41. For these reasons, the District Court ruled that the balance of equities and the public interest in the status quo weighed in favor of granting Plaintiffs’ motion for a preliminary injunction. Together Employees, et al. v. Mass General Brigham Inc., 2021 U.S. Dist. LEXIS 217386 (D. Mass. Nov. 10, 2021). Plaintiffs, a group of healthcare workers, filed a class action challenging the vaccine mandate of the State of Massachusetts requiring all employees of healthcare facilities to be vaccinated against COVID-19. Plaintiffs alleged claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act (“ADA”) and sought to enjoin Defendant from enforcing the vaccination policy. The Court denied the motion. The Court found that Plaintiffs were not likely to succeed on the merits of their claims. Defendant concluded that Plaintiffs’ purported disabilities under the ADA were not contraindications to vaccination. Further, the Court reasoned that Defendant presented a valid undue hardship defense to accommodate Plaintiffs in terms of their requests for masking, social distancing, or periodic testing as reasonable accommodations. Further, the Court noted that to the extent that Plaintiffs requested remote work as