The Shifting Legal Landscape of COVID-19 Vaccine Requirements

November 03, 2021|11:00 a.m.| ASTHO Staff

Close-up of carving on a stone lintel that reads United States Court HouseAs governments and private entities adopt COVID-19 vaccine protocols to protect health and safety, legal challenges are mounting. In some states, policymakers have proactively attempted to limit or prohibit adopting COVID-19 vaccine requirements. The Network for Public Health Law identified at least 65 lawsuits against COVID-19 vaccine requirements and found that courts have upheld vaccination requirements in most cases, blocking a few requirements based on religious liberty concerns. On rare occasion, lawsuits are being filed challenging a state’s limitation or prohibition of COVID-19 vaccine requirements.

State Limitations on COVID-19 Vaccine Requirements

Although nearly 20 states require COVID-19 vaccinations for certain workers, particularly healthcare workers and public employees, at least 11 states enacted laws limiting any COVID-19 vaccination requirement. These laws fall into three general categories: (1) those limiting vaccination requirements to vaccines with full FDA approval (e.g., Ohio, Utah), (2) those expanding exemptions to COVID-19 vaccine requirements (e.g., Alaska, West Virginia), or (3) those completely forbidding COVID-19 vaccine requirements in certain settings or by certain entities (e.g., Arizona, Arkansas, Montana, New Hampshire, Nebraska, Oklahoma, and Tennessee).

Montana’s new law—one of the most restrictive—prohibits the government, employers, or public accommodations (e.g., restaurants, hotels, shopping centers) from discriminating based on any vaccination status. In September 2021, the Montana Medical Association (MMA) joined several groups of healthcare providers in filing a lawsuit challenging the law. MMA, on behalf of healthcare providers in the state, asserts that the law violates the Americans with Disabilities Act’s reasonable accommodations provision and the Montana State Constitution’s right to “a clean and healthful environment.”

MMA claims that preventing private employers, including healthcare providers, from adopting employee COVID-19 vaccination protocols “inhibits [the employer’s] ability to practice ethical and effective medicine.” In addition to MMA’s lawsuit, a Montana law office has filed a similar suit claiming that the new law prevents them from “providing a safe and healthful business environment.”

Federal Vaccination Requirements

In September 2021, President Biden issued an executive order requiring federal employees to be vaccinated against COVID-19. The union representing federal employees announced they would work with the Biden Administration to ensure the implementation of the rule would protect employee privacy, provide access for vaccination, and a choice of which vaccine to receive, stating that “more than 100 years of legal precedent exists confirming the authority of employer-required mandates and vaccines, and the courts at all levels have consistently rejected challenges to this type of mandate.”

Although the union conceded the government’s authority to require federal workers to receive the COVID-19 vaccine, several federal employees filed lawsuits challenging the requirement. Two cases—Foley v. Biden and Costin v. Biden—claim that the requirement violates the First Amendment and the Administrative Procedures Act. President Biden also issued an executive order directing federal contractors and subcontractors to follow the Safer Federal Workforce Task Force guidance for all covered employees to be vaccinated against COVID-19.

Twenty-one state attorneys general sent a letter to the administration requesting the Safer Federal Workforce Task Force halt any effort to implement the vaccination requirement for federal contractors. The attorneys general assert that the federal-contractor vaccine requirement is overly broad and does not account for industry-specific factors that may increase or decrease risk of exposure to COVID-19.

In addition to vaccination requirements for federal employees and contractors, the Biden Administration directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule requiring employers with 100 or more employees to ensure their workforce is fully vaccinated. Using its authority to issue an Emergency Temporary Standard, which allows the agency to create and enforce a rule for six months before going through the standard rulemaking procedure, OSHA sent the proposed rule to the White House for final review in October 2021.

Several state executives have also announced plans to oppose the federal vaccination requirement for large employers. For example, Alabama Governor Kay Ivey issued an executive order in October 2021 directing the state government to oppose the federal vaccine requirement and decline to enforce any of the federal requirements.

Additionally, Arizona Attorney General Mark Brnovich filed a lawsuit in September 2021 challenging all three federal vaccination requirements, asserting that the requirements discriminate against people based on national origin by requiring U.S. citizens and permanent residents to receive the COVID-19 vaccine but not undocumented residents.

Employer Vaccination Requirements

As COVID-19 vaccines became more widely available, several employers began issuing policies to require their employees to be immunized. A Bloomberg survey of 100 companies with more than 100 employees found that approximately half implemented a vaccination requirement for at least a portion of their staff. Specific requirements vary by employer, with companies such as CVS requiring corporate and patient-facing workers (e.g., pharmacists) to be vaccinated while the Washington Post requires all employees to be vaccinated.

In one of the most stringent corporate vaccination requirements, United Airlines requires all workers to be vaccinated or risk termination. A group of United Airlines employees filed a class action lawsuit in federal court in September 2021, asserting that United Airlines did not provide an adequate religious and medical exemption process because all requests needed to be made by Aug. 31 and untimely requests were automatically denied. A federal court blocked United Airlines from enforcing its vaccination requirement in October 2021, requiring the airline to “temporarily refrain from placing exempted employees on leave due to their lack of compliance with United’s vaccine mandate.”

In addition to private employers voluntarily issuing vaccine requirements, at least 13 states or cities require healthcare workers within their jurisdiction to be vaccinated. Maine is one of the states requiring all healthcare workers to be vaccinated against COVID-19. In response, a collection of Maine healthcare employees filed a class action lawsuit asserting that the vaccine requirement violates their First Amendment rights by not providing a religious exemption. A federal court denied the employees request, allowing Maine to require all healthcare workers to be vaccinated without religious exemptions to remain in place.

The health care workers appealed their request to the Supreme Court of the United States, which declined to block the Maine requirement.

In a brief concurring opinion, Justices Barrett and Kavanaugh clarified that they declined to block the Maine rule through an emergency order and did not think it would be appropriate to weigh in before hearing the merits of a case in full review. In a dissenting opinion, Justices Gorsuch, Thomas, and Alito viewed the Maine regulation as overly broad and would have blocked the requirement from going into effect without a religious exemption.

ASTHO will continue to monitor the legal challenges to vaccine requirements and prohibitions to vaccine requirements, providing relevant updates to its members as they become available.


Maggie Davis, JD, MA, is the director of state health policy at ASTHO