Labor Force

Occupational Outcomes in a COVID-19 Enduring Society

COVID-19 Vaccination Mandate Origin

  • The Biden Administration’s initial attempts to address the COVID-19 pandemic focused on measures short of mandating vaccines, and expressly disclaimed an intention to impose a vaccine mandate. See, e.g., Press Briefing by Press Secretary Jen Psaki, July 23, 2021, (mandating vaccines “not the role of the federal government”). In April 2021, House Speaker Nancy Pelosi said “we cannot require” vaccinations. Pelosi and the White House’s line of thinking was in-line with American law. However as American courts continued to uphold the choice of American workers to get vaccinated or not, the Biden administration became frustrated. On September 9, 2021, President Biden announced a program aimed at compelling most of the adult population of the United States to be vaccinated. “Remarks by President Biden on Fighting the COVID-19 Pandemic” (Sept. 9, 2021). Those requirements are part of the President’s broader plan to “increase vaccinations among the unvaccinated with new vaccination requirements.” Id.; see also The White House, Path Out of the Pandemic: President Biden’s Covid-19 Action Plan. The White House, Vaccination Requirements Are Helping Vaccinate More People, Protect Americans from COVID-19, and Strengthen the Economy (Oct. 7, 2021). In September 2021, the Biden administration pushed a vaccine requirement on all federal contractors and subcontractors.

  • The Department of Labor has recognized that “approximately one-fifth of the entire U.S. labor force” is employed by federal contractors. Dep’t of Labor, History of Executive Order 11246, Office of Contract Compliance Programs, https://bit.ly/2ZEmLC8. The Biden administration issued Executive Order 14042 in September 2021 to address 20% of the American labor force’s reaction to COVID.

    Executive Order 14042 exempts contracts with a value below “the simplified acquisition threshold,” typically $250,000, 86 Fed. Reg. at 50,986-987; FAR §2.101, and specifies that it applies to contracts entered into, renewed, or with an option to be exercised on or after October 15, 2021, 86 Fed. Reg. at 50,987. Businesses with less than 100 workers have also been exempt. Any American workers who have been discriminated against for non-vaccination status should ensure that their employer was not an employer exempt from the Executive Order’s guidelines.

  • To all contractors and subcontractors outside of these exemptions, the White House mandated behavior under a Task Force Guidance, issued on September 24, 2021. The Guidance imposes the following requirements on federal contractors and subcontractors: (1) vaccination of covered employees except when an employee is legally entitled to an accommodation; (2) compliance with CDC guidance for masking and physical distancing at workplaces; and (3) designation of a compliance coordinator. COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Sept. 24, 2021). The Guidance clarifies that prior COVID-19 infection evidenced by an antibody test does not satisfy the vaccination mandate. Id. The Guidance also states that even employees who work outdoors are subject to the requirements. Id. The compliance deadline for full vaccination is January 4, 2022. The White House, Background Press Call on OSHA and CMS Rules for Vaccination in the Workplace (Nov. 3, 2021), bit.ly/3k1zVAz

    The Task Force Guidance ensured that the Contractor Vaccine Mandate’s scope is as broad as possible. It defines a “contractor or subcontractor workplace location” to “mean[] a location where covered contract employees work, including a covered contractor workplace or Federal workplace.” Task Force Guidance at 3. “Covered contractor employee,” in turn, “means any full-time or part time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” Id. at 4.

    Although the Guidance exempts those with “a sincerely held religious belief, practice, or observance,” it provides that those who are not vaccinated, including those with religious exemptions, are subject to masking and social distancing requirements more onerous than for those who are vaccinated. Task Force Guidance at 5.

Vaccination Exemptions

Religious Exemptions

Proving one’s religious exemption was also made difficult. Other than southern attorney generals such as the Mississippi attorney general publishing a sample letter, the White House provided no guidance to how these religious exemptions should be submitted. Thus, businesses were free to deny religious exemptions without oversight. Regardless, Title VII of the Civil Rights Act of 1964 (42 U.S. Code § 2000e) requires employers to make reasonable accommodations for an employee’s sincerely held religious, ethical or moral beliefs. Such sincerely held religious beliefs can include:

  • The belief that human beings are made in God’s image, and vaccinations interfere with what is God-made. (“Let Us make man in Our image, according to Our likeness; and let them rule over the fish of the sea and over the birds of the sky and over the cattle and over all the earth, and over every creeping thing that creeps on the earth.” Genesis 1:26)

  • Faith-healing can be relied on versus vaccination reliance.

  • Use of fetal stem cells in the development and testing of vaccines is unethical. (“For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life. Life is so precious to God that to redeem it so that we could live forever He gave the life of His Son. What a testament to life! Human life is extremely precious to God.” John 3:16)

The Civil Rights Act of 1964 applies not only to those who are members of established religions (Christianity, Buddhism, Hinduism etc) but also those with sincerely held religious, ethical or moral beliefs but do not belong to a traditional, organized religion.[1]

[1] An In-Depth Look at Religious Exemptions from COVID-19 Vaccine Mandates - Coates’ Canons NC Local Government Law (unc.edu)

Health Care Workers Win $10M settlement over COVID Vaccine Mandate

In 2021, employees at NorthShore University HealthSystem in Chicago, Illinois were informed that no workplace religious exemption to getting the COVID vaccine existed in its “Mandatory COVID-19 Vaccination Policy”. Despite Title VII of the U.S. Civil Rights Act prohibiting employment discrimination based on race, color, religion, sex, and national origin, and employees communicating with NorthShore to express their doubts, NorthShore maintained the policy. Thirteen lead plaintiffs got in touch with Liberty Counsel, a nonprofit dedicated to religious freedom in the United States. Liberty Counsel sent NorthShore a letter in October 2021 outlining the legal requirements of Title VII in American workplaces, which establish a religious exemption to COVID vaccines created with human fetal cells and proteins. NorthShore did not act appropriately upon Liberty Counsel’s letter, which launched a private class action lawsuit in Illinois according to Title VII guidelines on such suits. BREAKING: Multimillion-Dollar Settlement - Liberty Counsel (lc.org)

In late July 2022, a $10.3 million settlement was announced for the 500 workers forced to take COVID shots. In addition to the 10.3-million-dollar payout, employees who were terminated because of their religious objections to the COVID shots will be eligible for rehire if they apply within 90 days of final settlement approval by the court, and they will retain their previous seniority level at NorthShore. NorthShore also changed their vaccine guidelines as part of the settlement agreement, where “NorthShore will also change its unlawful ‘no religious accommodations’ policy to make it consistent with the law, and to provide religious accommodations in every position across its numerous facilities. No position in any NorthShore facility will be considered off limits to unvaccinated employees with approved religious exemptions,” Liberty Counsel revealed. The agreed-upon settlement was filed in federal court in the Northern District of Illinois. U.S. District Court Judge John Kness, a Trump appointee, was the sitting judge. $10 million settlement announced for workers forced to take COVID shots – ClarkCountyToday.com

NorthShore employees who were fired for not taking the shots will get about $25,000 each, and employees who were forced to take the shots to keep their jobs will get about $3,000 each. The 13 workers who were lead plaintiffs will get an additional payment of about $20,000. The legal team’s costs are being paid with 20% of the settlement. The entire class action, representing 500 individuals, could not have started without thirteen brave individuals coming forward and working with the Liberty Counsel team. Health care workers fired over vaccine mandate awarded $10 million in settlement (msn.com)

Medical Exemptions

Medical exceptions have also been required by the Americans with Disabilities Act (ADA) – for example, some vaccination side effects can be considered medical exceptions.         

Attorney generals of the states of Louisiana, Texas, Mississippi, South Carolina, Utah and Indiana have sued the Biden administration over its over-reaching Task Force requirements.[1] Supporting these attorney generals can assist fairness in workplace COVID-19 conditions.

Since the COVID-19 Task Force, OSHA has withdrawn the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, applicable to unvaccinated employees of large employers with 100 or more employees. The withdrawal was effective January 26, 2022.[2] Employees should check to determine if their workplaces are complying with OSHA rules.

[1] Filed-complaint.pdf (state.ms.us)

[2] COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov)

Workplaces include different rules for employee conduct, other than COVID-19 rules. Excessive force, for example, is a hot topic for many police forces including federal police forces such as the Capitol Police. In a July 2022 memo released by Attorney General Merrick Garland, the Department of Justice “DOJ” stated: "It is the policy of the Department of Justice to value and preserve human life…", "Officers may use force only when no reasonably effective, safe, and feasible alternative appears to exist and may use only the level of force that a reasonable officer on the scene would use under the same or similar circumstances." The policy's first portion deals with deadly force, barring tactics such as firing guns to disable cars. But the next section calls for de-escalation training, and the next two spell out situations in which officers have an "affirmative duty" — to prevent or stop other officers from using excessive force, and to render or call for medical aid when it's needed.[1]

Despite this policy, Capitol Police Officer Michael Byrd deployed deadly force to a broken window (i.e., not a deadly act) by Air Force veteran and mother Ashli Babbitt. Byrd was cleared of wrongdoing by an internal probe and continued to defend his actions in an August 2021 interview with NBC News.[2] Byrd himself has stated that Babbitt was not a deadly threat, and instead that she was just “posing a threat to the House of Representatives”[3] (not to an individual). 

[1] DOJ's new policy requires officers to stop others from using excessive force : NPR

[2] Cop who shot Capitol rioter Ashli Babbitt cleared after probe (nypost.com)

[3] Capitol officer Michael Byrd defends shooting Ashli Babbitt during riot (nypost.com)

Other Pressing Labor Issues in the Midst of COVID-19 Lacking Dischargement