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Monday, June 24, 2024
HomeHealth LawLitigation Over COVID-19 Insurance policies Continues

Litigation Over COVID-19 Insurance policies Continues

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Photo of Eric Alexander

If we had forgotten that there proceed to be plentiful U.S. circumstances of COVID-19, then there was loads round us to remind us.  Public masks utilization appears to have elevated.  We heard how the “tripledemic” of viruses had made hospital beds scarce.  We now have had colleagues out of fee as an alternative of finishing our assignments.  The CDC information present greater than 100,000 new circumstances within the final two weeks.  As Yogi Berra mentioned, “It ain’t over ‘til it’s over.”  The identical could possibly be mentioned of litigation about governmental insurance policies adopted again in 2020 or 2021.  Many of the choices within the area that we have now mentioned have concerned expedited consideration of preliminary injunctions and the appeals of rulings on preliminary injunctions.  For a lot of of those circumstances, it was onerous to see a justiciable situation after a preliminary injunction was denied.  As an illustration, if a plaintiff sought to pressure physicians at a hospital the place she was admitted with problems of COVID-19 to prescribe and administer her ivermectin, then there was in all probability not a stay situation a yr later.

Spivack v. Metropolis of Philadelphia, Civ. No. 22-1438, 2023 WL 36068 (E.D. Pa. Jan. 4, 2023), entails cross-motions for abstract judgment months after a preliminary injunction was denied.  It additionally concerned the insurance policies adopted by the District Legal professional of Philadelphia relevant to an Assistant District Legal professional he appointed within the fall of 2021, when COVID-19 was not less than a lot of a public well being concern as now.  Past the inherent eye-candy in a lawyer suing a lawyer—the DA was the true defendant right here and the town was a bystander—the case was fascinating in that it turned on modifications within the coverage over time and alleged distinction between the remedy of medical exemptions and spiritual exemptions.  Whereas framed as a First Modification query, it was basically an employment dispute with plaintiff getting fired for not complying with the vaccination coverage of the DA’s workplace.  (There have been state legislation claims asserted, however they have been waived based mostly on not complying with a pre-suit discover requirement.)

The targeted information have been as follows.  The DA had sole discretion to set and apply employment insurance policies for non-union workers.  Earlier than plaintiff was employed/appointed, the DA adopted a coverage requiring vaccination for COVID-19 topic to medical, incapacity, and spiritual exemptions as a part of a “technique to sustaining a secure office in gentle of [the COVID-19] pandemic.”  Id. at *2.  Not lengthy after plaintiff was employed, she utilized for a spiritual exemption, counting on a letter from her rabbi outlining a spiritual objection to the vaccine.  Id. at *3.  Whereas her software was pending (however she was apparently working within the workplace), the DA modified the coverage to get rid of all exemptions apart from the place vaccination posed a major threat of demise or different critical damage.  This variation occurred based mostly on the then-rising wave of circumstances involving the omicron variant and an evaluation that non secular exemptions weren’t required (which agreed with our ideas right here).  Plaintiff’s software for an exemption was denied and she or he was given two weeks to get not less than the primary dose of a two-part COVID-19 vaccination routine.  Fairly than request an lodging (like working from house), plaintiff refused to conform and was fired after three weeks of “Unvaccinated Go away.”  She sued two weeks later and later declined a proposed lodging.

Plaintiff’s argument was that the coverage, as written and utilized, violated her proper to free train of faith largely as a result of it had a medical exemption however not a spiritual one.  In case you have been following our different writing on comparable circumstances, you then might need a good suggestion the place this case ended up.  Vaccine mandates usually cross constitutional muster, even with out non secular exemptions.  This one did.  “The undisputed proof exhibits that this Coverage was meant to stop illness and demise to the utmost extent attainable, and {that a} single medical exemption was allowed as a result of it furthered those self same targets.”  Id. at *5.

Constitutional claims usually activate the extent of scrutiny.  The Spivack courtroom made clear that plaintiff would lose abstract judgment no matter whether or not strict scrutiny or a rational foundation customary utilized, but it surely discovered the decrease customary utilized as a result of the ultimate coverage was impartial towards faith as was usually relevant, as written and utilized.  It was impartial as a result of it didn’t point out something about faith and was not pushed by some hostility towards faith or particular religions.  The DA “eradicated the non secular exemption solely after he was satisfied that it was not required legally, and that mandating vaccination was important to the well being of his employees and the many individuals who got here into contact along with his employees.”  Id. at *6.  As soon as the coverage modified, no software for a spiritual exemption was granted.

Normal applicability, in flip, is determined by whether or not the coverage favors comparable secular conduct over non secular conduct and/or permits for improper individualized exemptions. 

It’s plain that the medical and spiritual exemptions, when judged in opposition to these pursuits, don’t regulate “comparable” conduct: a stringent medical exemption promotes well being and security; a spiritual exemption threatens well being and security. Each Courtroom of Appeals that has thought of the comparability of the dangers related to medical and spiritual exemptions from COVID-19 vaccine mandates (albeit on the preliminary injunction stage) has arrived at this identical conclusion.

Id. at *7.  (We focus on those self same appellate circumstances right here.)  The second a part of the inquiry was comparable.  The outlined medical exemption—granted solely upon proof of a threat of demise—and the non-existent non secular exemption within the closing coverage didn’t enable for problematic discretion.

The coverage met each strict scrutiny and the decrease rational foundation customary.  As to the previous,

The DAO thus “critically thought of considerably much less restrictive options” within the hope that they might obtain the Workplace’s compelling curiosity—making an attempt “to maintain individuals as secure as we are able to.”  Concluding that these options have been insufficient, the Workplace required vaccinations non-union workers save one.

Id. at *10 (inside quotation omitted).  Thus, plaintiff’s constitutional proper to free train of faith was not violated by the coverage as written and utilized.  This has been the outcome within the overwhelming majority of choices we have now seen about COVID-19 vaccination insurance policies, particularly within the employment context.  Whereas COVID-19 continues to have public well being implications, possibly it’s time for among the lingering lawsuits to go away.

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