October 18, 2021


Jason A. Levine, Gillian H. Clow, and Giles Judd, Alston & Bird LLP


The top COVID-19 litigation developments since our last post are: the U.S. Supreme Court’s refusal to enjoin New York City’s vaccine mandate for teachers; Texas Governor Greg Abbott’s ban on enforcement of vaccine mandates in the State of Texas; a Texas court’s temporary restraining order against United Airlines’ placing unvaccinated employees on unpaid medical leave; and the voluntary dismissal of a lawsuit against Target over allegedly misleading claims made in its advertising for hand sanitizer.

1. U.S. Supreme Court Declines to Block New York City’s Schools Vaccine Mandate

Overview: The Supreme Court declined an emergency request for an injunction from a group of teachers seeking to enjoin New York City’s COVID-19 vaccine mandate.

Background: On September 30, a group of four teachers sought an emergency order from the Supreme Court of the United States, to enjoin the New York City Department of Education from enforcing a vaccine mandate that was slated to take effect on October 1. Under the mandate, New York City’s teachers had until October 1 to show proof that they had each received at least one dose of the COVID-19 vaccines (or had obtained a religious or medical exemption). If they failed to do so, the city was empowered to fire them. The teachers’ petition argued that the injunction would serve the public interest by allowing teachers to continue to serve their communities, and that the mandate violated the Fourteenth Amendment’s Due Process Clause because it prohibited them from pursuing their profession and the Equal Protection clause because it discriminated amongst municipal workers by requiring teachers, but not firefighters or police, to be vaccinated.

Decision:On October 1, the Supreme Court declined to take up the issue. Justice Sotomayor denied the request without referring the issue to the full Court or requesting a response from the city.

Our Take: As vaccine mandates become more common, we expect litigation to follow, and we will monitor the developments as the case law informs the parameters of what the government can require.

2. Texas Governor’s Ban on Vaccine Mandate Sets Stage for Federal Showdown

Overview: Texas Governor Greg Abbott issued a new executive order that requires all employers in the State, both public and private, to make accommodations for employee exemptions to vaccine mandates, not only on the basis of religious belief and for medical reasons, but also “for any reason of personal conscience.”

Background: Executive Order GA-40 builds on the Governor’s previous order that prohibited state and local governments from enforcing COVID-19 vaccine mandates. Under GA-40, “no entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer[.]” Although exemptions already existed for individuals based on religious beliefs or medical reasons, the new order creates a third category of exemption for those who object due to “any reason of personal conscience.” The term “personal conscience” is not defined within GA-40 or under Texas law, though there is some federal law on conscientious objections not rooted in religious belief, which may prove some guide to the scope of the order.

Our Take: Uncertainty caused by this order, pending Biden Administration rules on vaccination, and potential shortages of COVID-19 tests, places Texas businesses in an uncomfortable position as they seek to comply with the law and make decisions that they deem best for their businesses.

3. Texas Judge Enjoins United Airlines From Placing Unvaccinated Employees on Unpaid Leave, But Questions Authority to Invalidate the Company’s Vaccine Mandate

Overview: A federal judge in the Northern District of Texas granted a temporary restraining order against United Airlines that prohibits the airline from placing employees on unpaid sick leave if they fail to comply with the company’s vaccine mandate.

Background: The parties in this putative class action had previously stipulated that United would refrain from placing employees who were exempt from its vaccine mandate due to religious belief or for medical reasons on unpaid sick leave. With that stipulation about to expire before it could rule on a pending motion for preliminary injunction, the court issued a TRO to “prevent hundreds of workers from . . . being compelled to take a vaccination in violation of their religious beliefs or medical restrictions, or . . . being placed on indefinite unpaid leave[.]” The purpose of the TRO was to allow the court to “maintain the status quo” until it could hold an evidentiary hearing on plaintiff’s motion for preliminary injunction. That evidentiary hearing took place on October 13, and Judge Mark Pittman questioned whether the judiciary had the authority to issue a preliminary injunction against United’s policy.

Our Take: Interestingly, Judge Pittman’s concerns regarding the court’s authority to enjoin a private company from placing exempted employees on indefinite unpaid leave directly follows the issuance of the Texas Governor’s Executive Order GA-40, discussed above, which effectively prohibits any entity within the State from compelling COVID-19 vaccinations for such exempted employees. A ruling on this motion may be the first test of the Governor’s order within Texas federal courts.

4. Plaintiff Drops Suit Against Target Alleging That He Was Misled by Hand Sanitizer Labeling

Overview: In the wake of increased scrutiny of hand sanitizers and their effectiveness against COVID-19, an individual filed suit in the Northern District of Illinois against Target arguing that its hand sanitizers were misleadingly labeled because they do not kill “99.99% of all germs,” as advertised. Plaintiff voluntarily dismissed his lawsuit after reviewing Target’s motion to dismiss.

Complaint: Plaintiff alleged that the statement on the hand sanitizer’s label that it “kills 99.99% of germs” is misleading because there is no scientific study proving that fact, and that the sanitizer is not effective against certain organisms, including norovirus, bacterial spores, and protozoan cysts. Plaintiff alleged breaches of express warranty and the implied warranty of merchantability, violation of the Magnuson-Moss Warranty Act, negligent misrepresentation, fraud, unjust enrichment, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act.

Motion to Dismiss:Target’s motion to dismiss argued that plaintiff lacked Article III standing because he never contended that he used the product, and he did not even allege that the germs in question ever appeared on his hands. As such, plaintiff could not allege that he was harmed in any way by the purported mislabeling. Target also argued that plaintiff failed adequately to plead his claims. Five days after Target filed its motion to dismiss, plaintiff voluntarily dismissed his lawsuit.

Our Take: With COVID-19 came a heightened focus on the ingredients in hand sanitizer and the labeling used to sell it. We do not expect this case to be the last involving hand sanitizer labeling, but it should warn plaintiffs to proceed with caution if they were not personally harmed in their use of a hand sanitizer.

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