A look back

For employers, 2021 was a challenging year. The post-election landscape, evolving federal and state law, and the effects of a seemingly endless global pandemic created a difficult business climate. Efforts to contain the spread of COVID-19 were met with stiff resistance — legal and otherwise; still, employers persist in earnest to maintain their operations safely and efficiently. However, 2021 brought other important, non-COVID-19 developments. This issue of the Class Action Trends Report offers a snapshot of the most significant employment-related class action activity from the tumultuous year.

Vaccine mandates spark litigation surge

The COVID-19 pandemic continued to pose enormous challenges in 2021. The Delta and Omicron variants, the volatile politics of vaccines and masks and testing, serious worker shortages, and the patchwork of ever-changing laws and regulations have created an environment fraught with risk of classwide liability. The Fall 2021 issue of the Class Action Trends Report discussed many of the challenges wrought for employers by the late phase of the COVID-19 pandemic.

At present, the bulk of new COVID-19-related employment lawsuits are centered around mandatory vaccination policies. A wave of complaint filings began mid-2021 without any sign it will ebb any time soon. Employees have sued individually, have brought large multi-plaintiff complaints, and have filed class actions seeking to invalidate vaccine mandates and redress for adverse employment actions resulting from the failure to comply. Republican-led state governments, trade groups, corporations, labor unions, public policy groups, and private citizens also have filed complaints (often jointly) raising similar challenges. College students and parents of K-12 children have sued to enjoin mandates implemented by universities and by local school districts.

Plaintiffs have sued to invalidate President Joe Biden’s executive orders for federal contractors and employees, Department of Defense (DOD) vaccine mandates for military and civilian employees, the Occupational Safety and Health Administration’s Emergency Temporary Standard (OSHA ETS) “vaccine or test” rule for employers with 100 employees or more, the Centers for Medicare and Medicaid Services (CMS) mandate for covered providers who participate in the Medicare and Medicaid programs and others covered by the CMS mandate, decision under the Fair Labor Standards Act, the Fifth Circuit chipped away at the prevailing presumption that plaintiffs are entitled to conditional certification of collective actions under a lenient standard of proof.

Also in 2021, the turnover in presidential administrations resulted in the reversal of federal agency rules and enforcement priorities, developments that have a measurable impact on classwide liability. At the state level, California lawmakers and plaintiffs’ lawyers continued to vex employers, and Illinois courts, in particular, proved to be an ongoing hotbed of class litigation brought under the state’s Biometric Information Privacy Act.

The first weeks of 2022 already have brought notable developments on the class action front, and the Supreme Court has teed up important cases for arbitration jurisprudence. Vaccine mandate litigation will begin to make its way through courts, which will begin to issue significant rulings on class certification, addressing questions of commonality in the context of novel factual scenarios. There will be much to discuss in forthcoming issues. For now, we turn our attention to an eventful 2021.

and a mandate for federally funded Head Start programs. Vaccine mandates enacted by Democrat-led states and localities also face legal challenges.

Many private employers have adopted their own COVID-19 vaccination requirements for employees, sometimes in adherence to government directives, but more often on their own initiative. These mandates also are under fire in courts. The court pleadings frequently challenge the mandate itself. In many cases, however, plaintiffs challenge the mandates as applied — alleging that the defendant has wrongly refused to grant a religious accommodation exempting the plaintiffs from the mandatory vaccination policy, among other claims.

Class action challenges. So far, more than 450 complaints have been filed challenging various COVID-19 vaccine mandates, and about 60 of those complaints have been brought as putative class actions. A majority of those class action complaints seek to invalidate private employer mandates. Like many vaccine mandate challenges, plaintiffs have filed motions for injunctive relief (both TRO and preliminary injunctions) pending a decision on the merits of their class action claims. Courts have been reluctant to enjoin employers from enforcing their mandates before resolving the dispute. Injunctive relief has been denied in 30 class action vaccine mandate cases and granted in only two cases, both involving public entities.

Federal mandates. Courts have shown willingness to enjoin some government-issued vaccine mandates. For example, the U.S. Court of Appeals for the Fifth Circuit suspended enforcement of the OSHA ETS. The U.S. Court of Appeals for the Sixth Circuit dissolved the stay, but the U.S. Supreme Court reversed the Sixth Circuit’s decision and granted a temporary stay. The Biden Administration has since withdrawn its enforcement of the OSHA ETS but left its provisions in place to serve as a notice of proposed rulemaking for a permanent rule.

Meanwhile, a Georgia federal district court has issued a preliminary nationwide injunction halting enforcement of the vaccine requirements of Executive Order (EO) 14042 (although the EO’s other requirements, such as masking and social distancing, remain in force for now). The U.S.

Court of Appeals for the Eleventh Circuit has denied the Biden Administration’s motion to stay the preliminary injunction pending its appeal of the lower court’s ruling.

Other federal courts also have enjoined EO 14042, but only within certain states. Most recently, an Arizona federal district court issued a permanent injunction of the federal contractor mandate but limited the scope of the injunction to Arizona. In addition, federal courts have blocked vaccine mandates for federal employees nationwide and Head Start providers in certain jurisdictions.

In contrast, the Supreme Court ruled in favor of the government, allowing the CMS vaccine mandate to continue. The CMS rule is now in effect across the country, although litigation challenging the CMS mandate is ongoing in several courts, including the Fifth and Eighth Circuits.