Top Developments in COVID-19 Litigation

June 7, 2021

Jason A. Levine, Ryan Martin-Patterson, and Stephen Tagert, Alston & Bird LLP

OVERVIEW

This week’s top COVID-19 litigation developments were: a lawsuit filed by healthcare workers challenging workplace vaccination requirements at two Houston hospitals; new workplace vaccination guidance from the EEOC; and the D.C. Circuit’s stay pending appeal of a trial court decision that vacated the CDC’s nationwide residential eviction moratorium.

1. Healthcare Workers Sue Houston Hospitals Over COVID-19 Vaccination Mandate

Overview: On May 28, 2021 employees of The Methodist Hospital and Houston Methodist/The Woodlands Hospital sued the hospitals over their policies requiring all personnel to be vaccinated against COVID-19 as a condition of on-premises employment.

The Complaint: The complaint discusses the development of the vaccine and asserts that it will be two years before the FDA collects adequate data to establish whether the vaccines are safe and effective. In addition, the complaint contends that thousands of deaths have been reported to the Vaccine Adverse Event Reporting System, far more than the 20-30 deaths linked to the flu vaccine each year. Plaintiffs claim that both Texas and Federal law establish a public policy against forcing unwilling individuals to receive a vaccine available only under Emergency Use Authorization and that such policy does not permit an employer to establish a mandatory vaccination policy.

Our Take: It will be interesting to see how this novel legal theory fares, particularly in light of the recent EEOC guidance, relating to certain federal nondiscrimination laws, that is discussed below. Employers should be cognizant of the risk that employees may bring similar lawsuits challenging vaccination requirements under federal or state law. We will monitor this case and other developments in this area.

2. EEOC Issues Updated Workplace Vaccination Guidance

Overview: On May 28, 2021, the EEOC issued updated “technical assistance” for employers, addressing questions related to COVID-19 vaccinations under federal employment law.

The Guidance: The EEOC issued four important clarifications for employers regarding the intersection of federal equal employment opportunity (EEO) laws and the COVID-19 vaccination status of their employees. First, the EEOC stated that federal EEO laws do not generally prevent employers from requiring that their employees be vaccinated in order to physically enter the workplace, subject to reasonable accommodations for disability and religious belief. Second, federal EEO laws do not prohibit employers from offering incentives to obtain voluntary information on their employees’ vaccine status, although such information must be kept confidential pursuant to the Americans with Disabilities Act (ADA). Third, employers administering vaccines to employees may provide non-coercive incentives for vaccination consistent with the ADA. Finally, employers may offer information to employees and their families to educate them about the vaccines and the benefits of being vaccinated. The EEOC stressed that whenever an employer obtains information regarding the COVID-19 vaccination status of an employee, that information is confidential and should not be disclosed.

Our Take: The EEOC’s updated guidance provides helpful clarifications for employers addressing the return of their workers to physical workplaces. The guidance will not only help employers as they deliberate about how best to protect their personnel, it will also help address employee concerns about potentially working alongside unvaccinated coworkers.

3. D.C. Circuit Leaves CDC Residential Eviction Ban in Effect Pending Appeal

Overview: On June 2, 2021, the D.C. Circuit stayed a lower court decision vacating the residential eviction moratorium issued by the CDC.

Background:  We previously highlighted several lawsuits challenging the CDC’s eviction moratorium, which is currently scheduled to expire by its own terms on June 30. Judge Friedrich of the U.S. District Court for the District of Columbia vacated the moratorium in May, and other district courts have enjoined it from being applied to specific landlords. As we previously noted, realtors in Florida recently filed a challenge to the moratorium that is essentially identical to the one decided by Judge Friedrich.

The Decision: After vacating the moratorium, Judge Friedrich stayed her decision pending appeal. Plaintiffs then asked the D.C. Circuit to vacate the stay, arguing that the government was unlikely to show that it had the authority to issue the moratorium after the CARES Act’s original three-month statutory moratorium elapsed and emphasizing that the CDC’s moratorium extended to all residential property, not just property connected to federal programs. The motion also argued that the government did not identify irreparable injury in the absence of a stay, and that the equitable factors similarly did not favor a stay.

The D.C. Circuit rejected plaintiffs’ arguments and left the stay in place. The panel held that the government “has made a strong showing that it is likely to succeed on the merits” and that plaintiffs could not show irreparable injury from the stay because all their claims are monetary in nature.  The court further noted that “provision has been made” to address collection shortfalls for landlords, citing rental assistance available as part of the pandemic relief law passed in March, and reasoned that HHS’s interest in protecting the public health outweighs the magnitude of any additional financial losses incurred during the appeal. On June 3, plaintiffs sought Supreme Court intervention to reverse the stay.

Our Take: Although the D.C. Circuit’s decision does not guarantee a victory for the government, it signals that the appeals court may view the merits differently than Judge Friedrich. Given that the eviction moratorium is currently scheduled to expire on June 30, 2021, however, the case may become moot before the D.C. Circuit rules on the appeal. In any event, if the moratorium expires on schedule, an uptick in residential evictions can be expected regardless of any interim ruling.

Jason Levine is a commercial and antitrust litigation partner in the Washington, D.C. office of Alston & Bird LLP.  Ryan Martin-Patterson and Stephen Tagert are associates at the firm.