November 15, 2021


Jason A. Levine, Gillian H. Clow, and Giles Judd


The top COVID-19 litigation developments since our last post are: lawsuits challenging the validity of President Biden’s new private-sector “vaccinate-or-test” mandate; a Texas court’s ruling overturning the Governor’s Executive Order that prohibited schools from enforcing mask mandates; a Texas court’s denial of a preliminary injunction against United Airlines’ vaccination mandate for employees; and the FTC’s contention, in a California case, that private companies cannot force the Commission to regulate Apple’s alleged efforts to keep a COVID-19 tracking app out of the App Store.

1. President Biden’s Private Sector COVID-19 Vaccinate-or-Test Mandate Spurs Lawsuits

Overview: On November 5, the Occupational Safety & Health Administration released an Emergency Temporary Standard (“ETS”) codifying President Biden’s directive that certain employers must require their workers either to test weekly or to be fully vaccinated against COVD-19. This “vaccinate-or-test” requirement has spurred legal challenges across the country.

Background:The ETS requires businesses with more than 100 employees to require that employees either be fully vaccinated or show a negative COVID-19 test every week. If workers fail to comply, their employers must remove them from the workplace. Part-time employees count toward the 100-employee number. Further, employers are not obligated to cover the costs of COVID-19 testing for unvaccinated workers, incentivizing vaccination and penalizing the decision not to receive the vaccine.

TRO: On November 6, the U.S. Court of Appeals for the Fifth Circuit granted various petitioners’ motion for an emergency stay, halting enforcement of the ETS pending further action by the court. In its order, the Fifth Circuit noted that the “petitions give cause to believe there are grave statutory and constitutional issues” with the ETS. Other lawsuits have also been filed by several Republican state Attorney Generals, labor unions, and others around the country.

Our Take: In September, we reported that President Biden’s vaccine mandate for federal workers and contractors had spurred lawsuits challenging his directive, and litigation challenging this new ETS is in keeping with the trends we have seen around the country related to vaccine and mask ordinances over the last year and a half. One critical difference in these cases is that the process for judicial review of OSHA standards involves transfer of all proceedings to a single circuit randomly designated by the Judicial Panel on Multidistrict Litigation from amongst the circuits in which petitioners filed challenges to the ETS. 28 U.S.C. § 2112(a). That will reduce the number of judicial voices weighing in on the ETS, but could expedite further judicial proceedings, including any applications for relief from the Supreme Court.

2. Texas Judge Overturns Governor’s Order Prohibiting Schools From Requiring Masks

Overview: A federal judge in the Western District of Texas ruled that the Governor’s Executive Order GA-38, which prohibits schools from enforcing mask mandates, violates the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, and is also preempted by federal law.

Decision: In August 2021, the advocacy group Disability Rights Texas filed suit in federal court on behalf of local students and their parents, seeking a declaration that the Governor’s Executive Order GA-38, which banned schools from issuing mask mandates, violated the ADA and Section 504, and an injunction prohibiting the Texas Attorney General from enforcing the order. Although the court found that plaintiffs’ claims against the Texas Education Agency and its Commissioner, Mike Morath, failed for lack of subject-matter jurisdiction, the court concluded that their claims against the Attorney General could proceed. Then, the court held that “GA-38 conflicts with federal law to the extent it interferes with local school districts’ ability to satisfy their obligations under the ADA and Section 504 and their implementing regulations.” In its ruling, the court stressed that “the ADA requires more than mere access to programs, services, or activities; it prohibits denying individuals with disabilities the benefits of services, programs, or activities on the basis of their disability.” The court reasoned that prohibiting mask mandates prevents a school district from complying with its ADA obligations to consider mask mandates as a reasonable accommodation for students with heightened risks from COVID-19 to participate in in-person instruction.

Our Take: Although the Texas Attorney General’s office indicated that the agency will appeal the decision, the ruling provides a potential roadmap for legal challenges to similar prohibitions on mask mandates.

3. Texas Judge Denies Employees’ Motion for Preliminary Injunction Against United Airlines Over Company’s Vaccine Mandate

Overview: A federal judge in the Northern District of Texas denied a preliminary injunction sought by employees of United Airlines who had been told that they would be placed on indefinite unpaid leave for refusing to comply with the company’s vaccine mandate, despite being granted exempted status on either medical or religious grounds.

Decision: We previously reported that, although the court ssued a TRO to “maintain the status quo” until it could hold an evidentiary hearing on plaintiffs’ motion for preliminary injunction, the court expressed concern over whether the judiciary had the authority to enjoin a private company from instituting and enforcing a vaccine mandate. In its order denying plaintiffs’ motion for preliminary injunction, the court addressed only the question whether plaintiffs met their burden of showing that “they would suffer imminent, irreparable harm absent a preliminary injunction,” and it noted that the order did not “rule on the ultimate merits of th[e] case.” Although plaintiffs argued that being forced to choose between receiving a vaccine in violation of their religious beliefs and being placed on indefinite unpaid leave would cause irreparable harm, the judge rejected that contention, stating that the argument “conflates the potential harm arising from United’s accommodation policy with the personal difficulty of deciding to decline the vaccine.” The court also rejected plaintiffs’ argument that loss of seniority during unpaid leave would constitute irreparable harm, noting that the court would have authority to order restoration of seniority if it ultimately finds a violation of law in the case. Finally, although the court sympathized with the seriousness of plaintiffs’ loss of income, it cited precedent for the proposition that loss of income – while serious – is remediable and therefore not irreparable harm.

Our Take: Since this order focused only on whether plaintiffs could satisfy one of the legal requirements for obtaining a preliminary injunction, it remains to be seen how the court will view the merits of the suit, particularly in light of the Texas Governor’s Executive Order prohibiting vaccine mandates for any entity within the State and the Biden administration’s new ETS for private sector workers that requires either vaccination or weekly testing.

4. FTC Argues COVID-19 Tracking App Developer Cannot Force it to Regulate Apple

Overview: In the Northern District of California, three developers of COVID-19 tracking apps filed suit against Apple, alleging that it has attempted to keep rival COVID-19 trackers out of its App Store so that Apple will not face competition when it launches its own similar app. The developers also asserted claims against the FTC, contending that it failed to respond to an email complaint about Apple’s conduct. In a motion to dismiss filed this week, the FTC argues that private parties cannot force the Commission to regulate Apple’s conduct, especially where there is no statutory provision requiring the FTC to respond to every private complaint it receives.

Background: The crux of plaintiffs’ complaint against the FTC is that it has actively pursued Sherman Act claims related to the Google Play Store, but has not substantively answered plaintiffs’ complaint about Apple’s efforts to keep the developers’ COVID-19 tracker apps out of Apple’s App store. In its motion, the FTC asserts that the court lacks subject matter jurisdiction because the FTC did not have a nondiscretionary duty to respond to the email complaint or investigate its allegations, and because plaintiffs lack standing to sue the FTC.

Our Take: While most COVID-19 litigation has focused on vaccines and mask mandates in the last few months, novel technology related to treatment and tracking opens a new frontier for disputes. We will monitor developments in these areas, including the extent to which cases like these proliferate.

Jason Levine is a commercial and antitrust litigation partner in the Washington, D.C. office of Alston & Bird LLP. Gillian Clow and Giles Juddare litigation associates at the firm.