HR and the Courts

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

Union Leaders Are Split Over Vaccine Mandates 

After a year of cooperation with union leaders over health and safety measures promoting worker safety during the pandemic, union leaders appear to be split on employer-mandated vaccine policies aimed at stopping the spread of COVID-19 and the new and dangerous Delta variant.

The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) — the largest federation of our country’s unions — has publicly supported mandatory vaccines to safeguard the economic recovery. One of its largest members, the American Federation of Teachers (AFT) has taken a different tact. The AFT has taken the position that it would oppose any employer vaccine plan that does not leave the choice to workers and unions. In a further clarification, the AFT president stated that it supports the use of vaccines, but that employer policies on vaccines must be negotiated, not coerced.

OSHA Workplace Safety Inspections on the Rise as OSHA’s Internal COVID-19 Restrictions Ease — Number of COVID-19-Related Workplace Complaints Triples Since June

The Occupational Safety and Health Administration (OSHA)’s general workplace inspections are on the rise. While regular workplace safety inspections by OSHA are rebounding from one year ago, they still lag behind their pre-pandemic numbers. As of June 2021, OSHA conducted 2,452 inspections across all industries, which is a 47 percent increase from the 1,672 inspections conducted in June 2020.

As OSHA lifted its COVID-19-related restrictions on inspectors, the number of general safety inspections has risen significantly. At the same time — presumably as a result of the Delta variant — COVID-19-related OSHA complaints have tripled since June 2021. More than half of all of the increased COVID-19-related OSHA complaints are in the Southeastern states.

Federal Court Denies Students’ Request for a Preliminary Injunction to Enjoin Mandatory COVID-19 Vaccinations Before Returning to Campus

A federal district court in Indiana recently denied a preliminary injunction requested by eight Indiana University students who claimed that the university’s mandatory COVID-19 vaccination policy violates due process, is more harmful than good, or violates public policy. In denying the injunction, the court concluded that the students were unlikely to prevail in their lawsuit on any of the grounds raised (Klaassen v. Trustees of Indiana University (2021 BL 269510, N.D. Ind., no. 21-cv-238, 7/18/21)).

The court concluded that the due process clause of the 14th Amendment of the Constitution allows the university to require vaccinations, “In the legitimate interest of public health for its students, faculty, and staff.” The students’ lawyer stated that the students would appeal the denial of the injunction to the U.S. Court of Appeals for the Seventh Circuit. As of publication, the Seventh Circuit also rejected the students’ request for a preliminary injunction, concluding that the university’s policy is very likely constitutional.

Law Professor Challenges University’s “Soft Vaccine” Mandate With Federal Court Lawsuit — Commentators Conclude His Antibody Defense is Unlikely to Sway the Court

A law professor at George Mason University has filed suit in federal district court in Virginia claiming the university’s “soft vaccine mandate” (i.e. those returning to campus unvaccinated must mask, test and social distance, rather than a “hard mandate” where unvaccinated individuals are not allowed back to campus) violates his constitutional rights to due process, including his right to bodily autonomy and his right to decline medical treatment (Zywicki v. Washington, et al (Case no. 1:21-cv-00894 E.D. Va. 8/5/21)).

The professor claims that his “natural immunity” from a prior COVID-19 infection protects him and that his immunologist concludes that the vaccine is not medically necessary for him. Legal commentators conclude that the professor faces “long odds” in his quest to succeed in invalidating the policy on constitutional grounds.

Student Walk-On Softball Player Loses Title IX Retaliation Claim — Court Applies Regular “Pretext” Rules and Credits New Coaches’ Decision to Cut the Plaintiff From the Team 

A federal district court in Alabama recently dismissed a Title IX retaliation complaint filed by a student walk-on softball player after she was cut from the team following her allegations that a former coach allowed and encouraged teammates to have sex with his son. The court ruled that the nearness of time between the plaintiff’s protected activity and her being denied a spot on the team was not enough by itself to establish pretext (Nemeth v. Auburn University (2021 BL 291959, M.D. Ala., No. 19-cv-00715, 8/3/21)).

The court rejected the plaintiff’s argument that walk-on players who were on the team for one season were not required to try out for a spot the following season, and stated that it was an entirely new coaching staff that chose not to award her a roster spot. The court further concluded that the plaintiff’s argument that the new coaching staff was “under the thumb” of university athletics administrators was based on “innuendo and conjecture.”

Finally, the court also rejected the plaintiff’s argument that she was qualified to make the team at Auburn University because she made the Elon University softball team after leaving Auburn. The court concluded that Elon was not at the same level athletically as Auburn.