State appeals court revives lawsuit challenging university’s COVID vaccine mandate

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ATHENS, Ohio (WOUB) — A state appeals court has kept alive a lawsuit challenging Miami University’s COVID-19 vaccination mandate, which the plaintiffs claim led to discrimination against them.

Governor Mike DeWine and Fran DeWine visit Heritage Hall College of Medicine on Monday, April 12, 2021, in Athens, OH. DeWine toured the facility and watched as three OU students were given the Johnson & Johnson vaccine and then spoke to the media about the vaccination efforts and supply in Ohio. "Our way to get back to normal is the vaccine, it's the only way to get back."
Governor Mike DeWine and Fran DeWine visit Heritage Hall College of Medicine on Monday, April 12, 2021, in Athens, OH. [Chris J. Day | WOUB]
The court’s decision could influence the outcomes of similar lawsuits against other universities in Ohio, including Ohio University.

While the Miami lawsuit can now continue to move forward, the plaintiffs have just one legal claim left to pursue, involving discrimination. Multiple other claims made by the plaintiffs were dismissed.

And the court did not decide whether there was any discrimination against the plaintiffs. The only issue before the court was whether the lawsuit could continue.

“The decision is really just procedural,” said Sharona Hoffman, a professor at Case Western Reserve University School of Law in Cleveland, whose expertise includes health law and employment discrimination. “It says explicitly we make no ruling as to the merits of the discrimination claim.”

Miami adopted its vaccination mandate at the start of the school year in August 2021. Employees and students were required to get vaccinated against COVID-19 or seek an exemption. Exemptions were offered for religious reasons, medical reasons and reasons of conscience.

Similar vaccination mandates were adopted at universities throughout Ohio, including Ohio University.

In October 2021, three Miami employees sued the university. And in December 2021, the same law firm that filed the Miami lawsuit, Akron-based Mendenhall Law Group, filed nearly identical lawsuits against Ohio University, Bowling Green State University and the University of Cincinnati.

The lawsuits argued that the universities were forcing people to get vaccinations in violation of state law and the Ohio constitution. They also argued the mandates illegally discriminated against those who did not get vaccinated, even if they received an exemption.

The universities in each case filed motions to have the lawsuits dismissed. They argued the plaintiffs were not being forced to get a COVID-19 vaccination because they had already gotten, or could apply for, an exemption. And because of this, they argued, the plaintiffs lacked standing.

Standing is a legal requirement for bringing a lawsuit, and it requires among other things that the plaintiffs show they have been harmed in some way by the actions of the defendants. The judges in each case agreed that because the plaintiffs could avoid getting vaccinated, there was no harm.

The lawsuits were dismissed, and in each case the plaintiffs appealed. The Miami case is the first of the four decided on appeal.

In its decision, the 12th District Court of Appeals agreed with the judge who dismissed the case that the Miami plaintiffs did not have standing to bring most of their claims because they suffered no harm.

Two of the plaintiffs had received exemptions before the lawsuit was filed. The third plaintiff had not applied for an exemption at the time, but could still do so. Because the university made exemptions readily available to those who did not want to get vaccinated, the court said, no one was being forced to receive the vaccine.

However, the appeals court did disagree with the lower-court judge’s dismissal of one claim. That claim was based on a new Ohio law that took effect in October 2021. This law says in part that universities cannot discriminate against someone who has not received a vaccine that has not been fully approved by the U.S. Food and Drug Administration.

This is where things get a little complicated from a legal standpoint.

The Miami plaintiffs argued in their lawsuit that unvaccinated employees such as themselves were treated differently than those who were vaccinated. For example, they argued that unvaccinated employees were required to “engage in activities and precautions” different from those who were vaccinated. They also noted that Miami implemented a bonus program available only to vaccinated employees.

The lower-court judge had dismissed the discrimination claim based on a letter from a university official that said vaccinated and unvaccinated employees were subject to the same testing and masking requirements. But this was not part of the plaintiffs’ lawsuit, so it could not be considered, the appeals court said.

When evaluating a motion to dismiss, appellate courts are limited to the claims made in the lawsuit, and must take them at face value.

“The appellate court criticizes the lower court for accepting into evidence some information that was not originally put there,” said Hoffman, the law school professor.

That said, Hoffman was surprised the university didn’t argue that the new state law was simply irrelevant in this case. The law applies only to mandates involving vaccines that do not have full FDA approval.

Miami adopted its vaccine mandate on August 31, 2021, just over a week after the FDA gave full approval to Pfizer’s COVID vaccine. The vaccine is now marketed under the name Comirnaty.

The plaintiffs argued that Comirnaty was not yet available in the United States at the time Miami issued its vaccine mandate.

It was up to Miami to argue in its motion to dismiss that the new law shouldn’t apply in this case because there was a fully approved vaccine when the mandate was issued.

Miami did note in a footnote that the Pfizer vaccine had received full approval and was available in the United States under the new Comirnaty name. It also noted in the footnote that the FDA said the Pfizer vaccine and the rebranded Comirnaty vaccine had the same formulation and could be used interchangeably.

But it did not explicitly argue that for this reason the plaintiffs should not be able to make a claim under the new law.

“A court is going to judge on the claims and defenses that are before it, and it’s not really going to make up defenses for somebody,” Hoffman said.

Now that the lawsuit has been revived, Hoffman said she expects Miami will raise this challenge to the plaintiffs sole remaining claim.

Meanwhile, the appellate court’s decision in the Miami case could influence the outcome of the three other cases on appeal. One appellate court’s decision is not binding on another appellate court. But a court may turn to another court’s decision for guidance when addressing a similar issue.

 “It’s a little bit more likely another appellate court would do the same if the case is identical, but they don’t have to,” Hoffman said.

As far as the discrimination claim goes, Ohio University did explicitly argue in its motion to dismiss that the new state law does not apply because there was a fully approved vaccine on the market when it adopted its vaccine mandate.