Litigation Trends Analysis

Universities Sued for Vaccine Mandates

One of the most recent developments in the global COVID-19 pandemic involves vaccine mandates in educational institutions.  The “Welcome Week” that college students typically experience will not look the same this year amid the resurgence of COVID-19 cases in the United States.  Colleges and universities are requiring proof of COVID-19 vaccinations for the start of the 2021-2022 academic year—some mandating all faculty, staff, and students be vaccinated, and some only mandating students living on campus.  The University of Michigan has a mandate that falls into the latter category, requiring only residential students be vaccinated.  Many universities are accepting religious and medical exemptions in an effort to accommodate students’ beliefs and physicians’ guidance. 

In response to these new requirements, some students are suing their schools claiming a constitutional right to attend in-person classes.  Several of these students are supported by anti-vaccine organizations.  Federal lawsuits currently exist in Indiana, Connecticut, California, and Massachusetts, and more lawsuits are anticipated in other states.  At these universities, such as the University of Connecticut, California State University and the University of Massachusetts, rules vary and students who seek waivers for religious and medical reasons are subject to more safety measures like mask-wearing and regular COVID-19 testing.  Policies at educational institutions are becoming an avenue for increasing the nation’s vaccination rate.  

The students’ lawsuits claim violations of the right to bodily autonomy and argue that vaccination risks outweigh the public health benefits.  At least one lawsuit was brought not by a student, but by a professor: Todd Zywicki, a George Mason University professor who has taught at the Antonin Scalia School of Law since 1998, filed a lawsuit in the U.S. District Court for the Eastern District of Virginia over the policy of denying merit pay increases to unvaccinated faculty members.  Disputes centered on vaccine mandates in educational institutions continue to loom and are likely to lead to similar lawsuits in the employment context.

COVID-19 Related Age Discrimination Class Actions on the Rise

A New York hotel was sued in the Southern District of New York for allegedly using the COVID-19 pandemic as a pretext for terminating older employees and replacing them with younger, cheaper employees.  The class action complaint alleges that the hotel extended an originally temporary layoff and then made the layoff permanent, terminating certain employees in the class in February 2021.  When the hotel reopened in March 2021, the rest of the older employees were not called back to work and the hotel began hiring younger employees.  This class action is an example of age discrimination lawsuits that are being filed after COVID-19 pauses in business have resulted in major workforce changes.

Lawsuits Alleging No-Poaching Agreement Antitrust Violations in the Spotlight

Two lawsuits involving allegations of prohibited no-poaching agreements have made national and state news recently.  An Illinois federal judge declined to certify a class of Jimmy John’s employees in a lawsuit alleging that franchises were prohibited from recruiting or hiring certain workers from each other without permission.  The court did not certify the class because of issues with the plaintiff who sought to represent the other Jimmy John’s employees but did not rule on the merits of the antitrust claims.  A similar lawsuit was just filed in the Western District of Michigan alleging that health care providers in Northern Michigan agreed not to solicit or hire each other’s anesthesia providers within a year of employment.  The lawsuit alleges that the anesthetists missed out on opportunities to bargain for higher wages and unlawfully eliminated competition.  As the COVID-19 pandemic continues to reshuffle the labor market and employees change jobs frequently, companies should be aware that no-poaching agreements can be under a microscope when employees try to change employers in the same industry and/or geographic location.