This week, the COVID-19 vaccine mandate for public employees took effect in Massachusetts, even as opponents continued to litigate the matter in court. Daniel Medwed, Northeastern University law professor and GBH News legal Analyst, joined host Sean Corcoran on Morning Edition to discuss the current status of the lawsuits.
Sean Corcoran: Now Daniel, even though the legal efforts by some public employees to fend off the start of the vaccine mandate have failed so far, there are lots of lawsuits still pending. Give us an update on where they stand.
Daniel Medwed: There are quite a few out there, in both state and federal court, and here are some of the major ones. First, with respect to the October 17 deadline, the state police union lost its request for a preliminary injunction in state court to stop the mandate from taking effect, and then just this past Friday the union representing state corrections officers/prison guards lost a similar lawsuit in federal court.
Basically, for an injunction to succeed, the plaintiff, the union, must show a likelihood of winning the lawsuit eventually, that refusing to issue the injunction would cause irreparable harm and that, in turn, granting it would advance the public interest, and the courts essentially found that those standards weren’t met.
Second, as for other lawsuits, one that I find interesting is that two UMass students recently appealed a federal judge’s decision to dismiss their lawsuit against the campus-wide vaccine mandate. That judge found that universities have an interest in protecting their students and the decision was not arbitrary.
Corcoran: What do you think the chances are that any of these lawsuits will ultimately succeed?
Medwed: I see a limited chance. For one thing, it is quite difficult to win on appeal; appellate courts tend to defer to the rulings of trial judges, for a variety of reasons. For another thing, both public policy and case precedent seem to support the imposition of vaccine mandates. In terms of policy, states have an inherent right to regulate during public health crises to protect their residents, for instance, by imposing mask requirements or travel quarantines, and vaccine mandates are just an outgrowth of that principle, so long as there are reasonable exemptions for medical or religious reasons.
As for the case law, and we’ve talked about this before, but this is a major U.S. Supreme Court case from 1905, during the smallpox epidemic, in which the Court upheld the imposition of a fine on a Cambridge resident for refusing to get the vaccine, ruling that that “every well-ordered society” is obligated to keep its citizens safe and that sometimes — “under the pressure of great dangers” — citizens may be subject to “reasonable regulations.”
Corcoran: All of the lawsuits you just mentioned involve public mandates, those applicable to state employees or at state universities. What about vaccine mandates at private companies?
Medwed: I think it depends. On the one hand, similar arguments apply in the private setting — that private companies have an interest in protecting their employees, and that it is a reasonable exercise of their discretion to mandate vaccines given the current crisis.
On the other hand, the Biden administration’s proposal to mandate the vaccine in companies with more than 100 employees is bound to face some serious challenges, especially given the obvious collision between federal power and states’ rights in places where there’s opposition to the vaccine, and I am watching that one carefully as it rolls out. Right now, OSHA has submitted its proposed rules on this to the Office of Management and Budget, so we should know more soon.
