Seyfarth Synopsis: During 2021, COVID-19 class action litigation became more pervasive in reaching across new industries and spawning new challenges on the workplace class action front. The COVID-19 pandemic had a significant impact on all aspects of life in 2021 and a profound impact on the workplace, in particular. In 2020, as state and local governments responded to the COVID-19 threat, many employers moved their employees to tele-work or work-from-home arrangements, or laid off or furloughed workers, and many businesses and courts shut down or postponed critical operations. In 2021, as state and local governments continued to manage the COVID-19 threat, vaccines became widely available, and many employers attempted to move their employees to "return to work" or "hybrid" work arrangements.

Such developments prompted federal regulators to enact vaccine-or-test mandates and fueled employers to adopt or expand health screenings, temperature check protocols, and mandatory vaccination policies. These steps, in turn, led to waves of controversy as workplace class actions brought by states, employee advocates, unions, and employer groups erupted over regulatory actions and employer policies.

Challenges to federal actions, to date, have produced mixed results. On September 9, 2021, President Biden signed Executive Order 14042. Through its terms, the EO required entities that contract with the federal government to agree to require vaccinations for their employees. The EO proclaimed that it "promoted economy and efficiency in Federal procurement by ensuring that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument." On November 30, 2021, in State of Louisiana v. Becerra, No. 3:21-CV-03970 (W.D. La. Nov. 30, 2021), however, the district court entered a preliminary injunction enjoining enforcement of the rule.

On a similar front, on November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA) announced its long-awaited Emergency Temporary Standard (ETS) that required employers with 100 or more employees, among other things, to develop, implement, and enforce policies requiring most employees to get vaccinated or to undergo weekly testing for COVID-19. The ETS became effective upon publication in the Federal Register on November 5, 2021, and set January 4, 2022, as the deadline for employees to receive their final vaccine dose or to begin testing. The ETS covered all employees of covered employers, whether full-time, part-time or temporary, except for employees (a) working alone (in a location where other individuals are not present); (b) working from home; or (c) working exclusively outdoors.

Litigants filed at least 27 lawsuits in 12 different federal circuit courts of appeals challenging such agency rule-making on the grounds that, among other things, it exceeded executive authority to regulate employment conditions. On November 12, 2021, in BST Holdings, LLC v. OSHA, No. 21-60845 (5th Cir. Nov. 12, 2021), the Fifth Circuit stayed the ETS and ordered OSHA to refrain from taking steps to implement or enforce the mandate until further court order, reasoning that the petitioners' challenges to the mandate were likely to succeed on the merits because, even if the mandate passed constitutional muster, it was the "rare government pronouncement" that was both under-inclusive and over-inclusive. Despite such pronouncement, on December 17, 2021, a Sixth Circuit panel designated to rule on the consolidated challenges lifted the stay, reasoning that the harm caused by keeping the emergency temporary standard frozen outweighed any damage that would stem from letting it go into effect.

The Sixth Circuit's ruling was quickly appealed on an emergency basis to the U.S. Supreme Court. On December 22, 2021, the U.S. Supreme Court agreed to hear arguments on an expedited basis at a special session on January 7, 2022, and to consider whether it should allow the ETS and another rule, issued by the Centers for Medicare & Medicaid Services requiring vaccinations for employees at facilities that participate in the Medicare and Medicaid healthcare programs, to go into effect. Both cases challenge the authority of administrative agencies and the federal government to issue such sweeping mandates in the context of the pandemic. A ruling is anticipated in the first quarter of 2022.

Challenges to state government actions have proven less successful. For instance, healthcare workers sued to block COVID-19 vaccine mandates in both Maine and New York and sought preliminary injunctions contending that such mandates violated their constitutional rights because they did not include religious exemptions. In both cases, the reviewing courts, respectively, refused to grant injunctive relief, and the U.S. Supreme Court declined requests to intervene in both actions. In total, of the 41 motions for preliminary injunctive relief filed in 2021 to prevent enforcement of vaccination rules, only 15, or 41% were granted.

This trend is illustrated by the following graphic.


Challenges to policies adopted by private employers faced worse odds in 2021. In 2021, litigants challenged employer policies on various grounds, including on the grounds that they supposedly discriminated against employees because they failed to provide disability or religious accommodations or retaliated against workers who expressed COVID-related concerns or sought such accommodations.

In Sambrano v. United Airlines, Inc., No. 21-CV-1074 (N.D. Tex. Nov. 8, 2021), for instance, a group of employees filed a putative class action alleging that United violated Title VII by refusing to engage in an interactive process, by failing to provide reasonable religious accommodations, and by retaliating against them for engaging in protected activity. After granting in part defendant's motion to dismiss in part on personal jurisdiction grounds, the court denied plaintiffs' motion for preliminary injunction on the basis that plaintiffs failed to meet their burden to show that, without such an order, they would suffer imminent, irreparable harm.

On December 13, 2021, the Fifth Circuit denied an emergency motion for an injunction pending appeal of the order in Sambrano v. United Airline, Inc., No. 21-11159 (5th Cir. Dec. 13, 2021).

By contrast, in Fraternal Order Of Police Chicago Lodge No. 7 v. City of Chicago, No. 2021 CH 5376 (Ill. Cir. Ct. Nov. 1, 2021), a group of police officers filed an action seeking a temporary restraining order to enjoin the implementation of defendant's COVID-19 vaccination policy until the parties could arbitrate their grievances pursuant to their collective bargaining agreements. The court granted the motion in part. The court reasoned that, if all employees complied with the vaccine requirements, as of the end of the year, there would be no grievances to adjudicate and no remedy that an arbitrator could award. The court, therefore, ruled that plaintiffs demonstrated irreparable injury, stayed compliance with the vaccination requirement until the parties completed their arbitrations, and granted in part plaintiffs' motion for a preliminary injunction.

In total, courts have issued 65 opinions on motions to dismiss class action claims related to COVID-19 in 2021, and have granted 82% of those motions in whole or in part. The following graphic shows this trend:


In sum, the pandemic has continued to spike class actions (of all varieties) and litigation over all types of workplace issues. To date, however, defendants have achieved high rates of success in defeating these claims by overcoming motions for preliminary injunction and by prevailing on motions to dismiss in whole or part. Employers are apt to see these workplace class actions continue to expand and morph in 2022 as the pandemic endures.

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