Update (December 17, 2021): On December 17, 2021, the Sixth Circuit Court of Appeals voted 2-1 to lift the Fifth Circuit’s stay of the OSHA Emergency Temporary Standard (ETS), stating that the Biden administration’s “shot-or-test” rule was a valid exercise of OSHA’s regulatory authority.
Original article from 12/13/21 follows:
In my article for the March 2021 issue of Senza Sordino, “Immunizing Our Orchestras: Vaccine Mandates and the Law”, I discussed what appeared to be the thorniest issues at the time regarding mandatory vaccination policies in the workplace: whether such policies needed to be bargained; whether the Emergency Use Authorization (EUA) status of vaccines at that time afforded employees an exception; the medical or religious exemption and accommodation process; and the possibility that states might prohibit such policies in private employment. Some of those issues have been resolved; for example, the vast majority of union employers have indeed treated this as a bargaining issue, and EUA is now a moot point given full FDA approval for the three vaccines currently in use in the U.S.
But as the topic of COVID-19 vaccination becomes ever-more politicized, new issues have arisen. When I wrote that litigation on the question of religious exemptions in particular was “virtually guaranteed,” I should have broadened the scope of that prediction. Legal battles are erupting on all fronts. Here are some of the latest developments, some of which may be superseded by current events by the time this goes to print.
The OSHA Rule and Its Relevance
On November 5, the Occupational Safety and Health Administration (OSHA), at the direction of the Biden administration, issued its long-awaited vaccination rule in the form of an Emergency Temporary Standard (ETS). Despite the media coverage continually referring to it as such, it is important to note that this is not actually a “vaccine mandate.” The ETS requires that employers with more than 100 employees either adopt a mandatory vaccination policy (subject to the usual medical and religious exemptions) or require employees to be tested for SARS-CoV-2 at least once per week and be masked. It would be just as accurate—actually, more so—to describe the ETS as a testing-and-masking mandate, with exceptions for those who are vaccinated.
Predictably, lawsuits were immediately filed to stop implementation of the ETS. First to weigh in was the Fifth Circuit Court of Appeals, a conservative federal appellate court that hears cases from Texas, Mississippi, and Louisiana. A three-judge panel, two appointed by Donald Trump and the third by Ronald Reagan, issued a “stay” the very day after the ETS was issued, thus preventing it from going into effect.
On November 12, the same court reaffirmed its stay in a 22-page opinion that was striking in both its hostility towards the rule and its use of many of the same talking points we see in conservative media outlets. Bst Holdings, LLC v. OSHA, No. 21-60845 (5th Cir. Nov. 12, 2021). In the judges’ view, the ETS is a “sledgehammer” that will “decimate [employers’] workforces (and business prospects).” The court speculated that the “true purpose” of the rule “is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary”; and at one point, the court even questioned whether “COVID-19 poses any significant danger to workers to begin with.” (However one feels about the ETS, downplaying the risk of a pandemic that has killed nearly 800,000 Americans is not a persuasive argument.) Mischaracterizing the ETS entirely, the court falsely stated that it forces workers to choose “between their job(s) and their jab(s),” completely ignoring that there is a testing/masking option for those who don’t want to make that choice. That a federal appeals court would make such a blatantly misleading statement is truly astonishing.
Since then, faced with lawsuits in all federal circuits, an obscure judicial “lottery” procedure resulted in reassignment of the case to the Sixth Circuit. The Sixth Circuit, which also leans conservative (but not as much as the Fifth Circuit), will now consider the merits of the ETS and determine whether it is a lawful exercise of federal authority. Regardless of the outcome, one hopes the court will be more measured in its analysis. Ultimately, the Supreme Court will likely have the final word.
When it comes to ICSOM orchestras, however, the validity or invalidity of the OSHA ETS is unlikely to make much of a difference. The majority of ICSOM orchestras already have bargained mandatory vaccination policies, most without a general testing alternative (though that alternative may be employed as an accommodation for a medical or religious exemption). Those that don’t maintain mandatory vaccination policies require testing for unvaccinated musicians.
This raises a question, though: if the OSHA ETS rule provides for either mandatory vaccination or mandatory masking and testing, why are most orchestras going beyond that and requiring vaccination for all musicians? After all, the ETS represents a pronouncement from the federal agency responsible for ensuring workplace safety, in an administration that is clearly committed to protecting workers during the pandemic. Why do more?
The answer, I believe, lies with the unique nature of the orchestral workplace. Half the musicians not only cannot wear masks, but research has shown that many of their instruments have the potential to emit aerosols at enhanced levels. Distancing and the use of smaller ensembles—the preferred solution last year—is not economically feasible on a long-term basis. So, up to 100 people are gathered together in close quarters for hours at a time, half of whom can’t wear masks and may have no choice but to emit potentially harmful amounts of aerosols, while their unmasked colleagues also take in great gulps of air containing those very same aerosols. When it comes to airborne infectious diseases, it would not be a stretch to consider an orchestra to be a high-risk workplace.
The OSHA ETS is relevant to our orchestras in one respect, however: musicians who apply and are approved for medical or religious exemptions, and seek an accommodation that permits them to perform on stage, can point to the rule to support an argument that masking and testing sufficiently minimizes the risk to others. (More on that below.)
Legality of Mandatory Vaccination Policies for Private Employers
The first case to directly challenge the legality of a mandatory vaccination policy in private employment was filed in federal court by a group of nurses and other employees at Houston Methodist Hospital. In a succinct ruling denying a preliminary injunction against the policy, the judge concluded that the workers “can freely choose to accept or refuse a COVID-19 vaccine”; and if the choice is to refuse, they “will simply need to work somewhere else.” Bridges v. Houston Methodist Hosp., No. Civil Action H-21-1774 (S.D. Tex. June 12, 2021).
Dozens of cases have been filed since. Nearly all reached the same result: where the policy at issue arose in the context of private employment, the courts denied the requested injunctions. See, e.g. Smith v. Biden, No. 1:21-cv-19457 (D.N.J. Nov. 8, 2021) (citing relevant cases). Where injunctions have been granted, the policies at issue affected public employees—i.e., government workers—and failed to provide for religious exemptions; and even then, some of those injunctions have been vacated on appeal. See, e.g., We the Patriots USA, Inc., v. Hochul, No. 21-2179 (2d Cir. Nov. 4, 2021).
Separately, a Biden administration rule requiring vaccination of healthcare workers whose employers receive Medicare or Medicaid funds was recently stayed. See Commonwealth v. Biden, No. 3:21-cv-00055-GFVT (E.D. Ky. Nov. 30, 2021). Such cases have no relevance to the issue of whether private employers can maintain vaccination policies; rather, as with the ETS rule, these cases turn on whether the federal government has the power to impose such policies.
For private-employment policies, most of the courts denying injunctions (and many legal scholars) have discussed the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, 197 U.S. 11, in which the city of Cambridge, Massachusetts, implemented regulations requiring residents to be vaccinated against smallpox. Jacobson refused and was ordered to pay a $5 fine. On appeal, the Supreme Court held that the regulation was lawful.
The case is not squarely on point because it deals with a State’s power to require vaccinations—not that of a private employer, which has far more authority to require vaccinations as a condition of employment, or the federal government, which has more limited powers. But the Court’s reasoning has proved persuasive to courts considering workplace vaccine mandates. It also is instructive because the arguments made by Jacobsen, and the Court’s rejection of those arguments, are virtually identical to what we encounter daily on cable news and social media networks.
For example, Jacobsen insisted “that his liberty [was] invaded,” citing “the inherent right of every freeman to care for his own body and health in such way as to him seems best.” Justice Harlan, writing for the Court, disagreed: “the liberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.”
Justice Harlan declined to frame the debate as a choice between private liberty and common good; rather, he found the principle of “the common good” to be an essential component of liberty itself: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” As one federal district court summarized Jacobsen: “Actual liberty for all of us cannot exist where individual liberties override potential injury done to others.” Beckerich v. St. Elizabeth Med. Ctr., No. 21-105-DLB-EBA (E.D. Ky. Sept. 24, 2021).
Today, the increasingly angry debate over COVID-19 vaccination mirrors those very same arguments regarding individual liberty (the right to choose what we do with our own bodies) vs. the need to protect the common good (to keep others healthy, and to hasten the end of the pandemic). Is individual liberty paramount? Or do we, as citizens of a free society, have a responsibility to protect other free citizens from the consequences of our own exercise of liberty?
The debate is playing out in real time as GOP governors and legislatures in states like Florida and Texas issue executive orders or enact legislation prohibiting employees from maintaining mandatory vaccination policies. A recent Florida law imposes fines of up to $50,000 per employee for businesses with vaccine mandates, unless exemptions are provided not only for health or religious concerns, but for a prior COVID-19 infection or “anticipated future pregnancy” (whatever that means); employees may also choose either periodic testing or wearing a mask in lieu of getting vaccinated.
Whether any of these laws or orders are legally enforceable is unclear. Generally, under the Supremacy Clause of the Constitution, federal laws preempt conflicting state laws; the federal OSHA ETS, therefore, should override these state laws and executive orders. But as discussed above, the federal rule is being challenged, and it remains to be seen whether it will survive. Again, the power afforded to the Federal government is not the same as that afforded to the States, which was clearly established in Jacobsen; the federal government possesses only those powers specifically afforded by the Constitution. Whether the power to require vaccinations in private employment is one such power is hotly debated. All of this will be tied up in the courts for months, if not years.
As a result, employers with mandatory vaccination policies in certain states face a myriad of conflicting laws, executive orders, and regulations, with no clear answer as to what is actually “legal.” Some large corporations, including United Airlines and Southwest Airlines in Texas, have maintained their policies in the face of state action prohibiting them; but others, like Disney in Florida, have suspended their policies in light of the legal uncertainty. For now, the U.S. Chamber of Commerce is urging employers to comply with the OSHA ETS.
Some ICSOM orchestras may therefore find themselves with policies that on their face violate a state law or executive order, but that still may be deemed lawful at the end of the day. The good news is that it is the employer, not the orchestra committee or the union, who is primarily responsible for ensuring that its policies comply with the law. Management will need to consult its lawyers. As a practical matter, though, it would be a good idea to at least start the conversation with management if your orchestra is in one of these states.
Developments Regarding Exemptions
In my March 2021 Senza article, I discussed the legal landscape as it applies to employees seeking medical exemptions (under the Americans with Disabilities Act) or religious exemptions (under Title VII of the Civil Rights Act of 1964) to employer vaccine mandates. Nothing has changed in terms of the applicable legal standards: employers who approve an exemption must engage in the interactive process of reasonable accommodation, and can deny any accommodation that imposes undue hardship on the employer or creates a significant risk of substantial harm to others in the workplace.
But now we have the benefit of experience and have seen how orchestral employers are handling these exemption requests. The general approach, with some exceptions, seems to be two-fold: the employers are not questioning the legitimacy of the exemption requests, but they often deny an accommodation that would permit the unvaccinated musician to perform with the orchestra on stage on grounds that doing so represents a health risk to the other musicians (and thus undue hardship).
That suggests a belief among employers that they are on solid legal ground in denying an accommodation for safety reasons, as opposed to questioning the validity of the exemption request itself. They may have grounds for the latter, given that most medical experts agree that medical conditions that would prevent someone from getting vaccinated are incredibly rare, and that no major religion has advised its adherents to avoid vaccination.
But given the extremely broad legal definition of sincerely held religious beliefs—“moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views”– employers have shied away from objecting to the sincerity of religious exemption requests. But they are far less hesitant to deny accommodations. That is because, as I discussed in previously in Senza Sordino, the threshold for an employer to show “undue hardship” in the case of a religious exemption is far lower than in the case of a medical exemption. Following the Supreme Court’s 1977 decision in TWA v. Hardison, 432 U.S. 63, any hardship to the employer that is more than de minimis (the fancy legal term for “minimal”) is sufficient for an employer to deny a requested accommodation.
Recently, the EEOC confirmed that standard and also made clear that an increased safety risk can constitute “undue hardship” (emphasis added):
The Supreme Court has held that requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship.Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business—including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.
Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.
That standard will be challenged, and TWA may well be overruled by a Supreme Court that is now far more conservative than in 1977 and far more committed to protecting the free exercise of religion. But for now, the de minimis standard for undue hardship is still the law, and employers are entitled to rely on it.
As noted earlier, though, exempt employees seeking accommodation may try to point to the OSHA ETS to support their request. Because the rule provides a testing-and-masking alternative to vaccination, an employee could argue that the federal agency with expertise in workplace safety has declared that alternative to be safe. That may provide an opening for an exempt string or percussion player—who can be masked at all times—to argue that they should be permitted to perform with the orchestra with frequent testing and (if practicable) distancing.
But it’s not that simple, of course. The employer will also need to consider a host of other factors affecting the safety of other musicians. Again, the orchestra is a unique workplace that was not specifically contemplated by the OSHA ETS, and a testing-and-masking alternative isn’t as effective when so many employees in the workplace cannot wear masks. Employers would need to take into account the placement of the unvaccinated musician in the orchestra; the efficiency of the ventilation system; whether the musicians perform on stage or in a pit; the level of community transmission of COVID-19 (which, unfortunately, is rising again in many places); the emergence of new variants like Omicron; and so on. And again, because the threshold for “undue burden” for religious exemptions is so low under current law, any demonstrable increase in the risk to others might provide the employer with a legally defensible basis to deny that kind of accommodation.
Issues regarding COVID-19 vaccination in ICSOM orchestras continue to be divisive and difficult to resolve. At the 2021 ICSOM Conference in Pittsburgh, I urged the delegates to make every effort to view these issues objectively. The goal of any mandatory vaccination policy must be to ensure workplace safety—period. There are sources to look to in making that determination, including medical experts and guidance from agencies like the CDC and the EEOC. Fear and emotion must be taken out of the equation. The purpose is not to penalize those who make choices with which many may disagree, but to do what is in the best interests of the bargaining unit as a whole.
It is possible that the worst of the pandemic is behind us, even with the new Omicron variant. Perhaps the combination of mass vaccination, prior COVID-19 infections among the unvaccinated, and new therapeutics will finally transform COVID-19 to an endemic disease. In the meantime, we all do the best we can. That includes lawyers and courts who must navigate an ever-changing legal landscape.