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Abandoned Masks, Vaccines Required: Court Reopenings Vary (1)

May 25, 2021, 8:46 AMUpdated: May 25, 2021, 9:07 PM

Federal courts are altering and, in some cases, loosening pandemic-era restrictions on operations as vaccinations increase and infections decline, ushering in a new wave of procedures that vary by court.

All District of Rhode Island staff must be vaccinated before returning to work. And at least 12 courts are allowing fully vaccinated individuals to go without masks in their courthouses, following the latest Centers for Disease Control and Prevention guidance. Those courts include the U.S. Court of Appeals for the Eleventh Circuit and the Northern District of New York.

Covid-19 caused courts nationwide to alter operations, shifting to remote work and postponing jury trials. Procedures are evolving as conditions improve. Although approaches differ, one thing is certain: Increased vaccinations are getting people back in the courthouse.

“Like everybody else, we’re struggling with back-to-work for the workforce,” Southern District of Texas Chief Judge Lee Rosenthal said of her court. In the Houston courthouse, Rosenthal said they’re hoping to have workers back in person by mid-June. “Given the vaccination availability, that seems entirely doable,” she said.

Required Shots

John McConnell, the chief judge for the District of Rhode Island, believes his court may be leading on requiring vaccinations for all staff.

“We chose to go that route for the safety of our fellow employees and for the ability to keep the public safe when they do enter,” McConnell said.

Under the policy, employees must be vaccinated by June 1 to return to work in person, unless the court authorizes a reasonable accommodation, such as a disability, medical reason, or a sincerely held religious belief.

McConnell says the court hasn’t had any problems getting workers on board. “As soon as we sent out the policy, everyone complied,” McConnell said. And he said other courts are inquiring about it.

The Administrative Office of the U.S. Courts, the operations arm of the judiciary, doesn’t recommend that approach. A courts’ office spokesman said that its advisory guidance recommends “employees be strongly encouraged to receive a COVID-19 vaccination, but that vaccinations not be mandated or required as a basis for excluding employees from the workplace.”

VIDEO: Employers are making plans to return to their workplaces. How quickly they succeed could depend on how many of their employees get vaccinated.

Surveys, Tailoring

Eastern District of California Chief Judge Kimberly Mueller said her court decided against going the Rhode Island route.

That’s partially because the size of the sprawling Eastern District that includes Sacramento would make it difficult to carry out such a policy, Mueller said.

The court opted for a voluntary survey of the court community to see if they were approaching a high number of individuals who have become immunized through vaccination, sometimes referred to as “herd immunity.”

“At this point, pretty much every court employee who wants to get vaccinated has been able to get a vaccine,” Mueller said.

Rosenthal said she doesn’t see the Southern District of Texas adopting the same policy as Rhode Island. Although the court isn’t requiring vaccinations, it’s keeping unvaccinated employees from working with jurors “to minimize the likelihood, or the risk, that they might infect others,” she said.

Mask Off, Mask On

Masking is another area where there is some divergence. In several states, vaccinated people no longer have to be masked inside the courthouse.

The courts’ office recommends maintaining existing masking policies, while it reviews the new CDC guidance.

Judge Liles Burke of the Northern District of Alabama got an early start. He issued an order April 13 allowing vaccinated people to remove their masks inside the Huntsville and Florence courthouses as long as they showed their card proving they had been fully vaccinated and it had been two weeks since that occurred. The district followed his order with its own May 19.

Following the CDC’s guidance a month later that loosened masking recommendations for vaccinated people, several courts issued similar policies. The Southern District of Mississippi and Western District of Kentucky, specifically referenced the new guidance in their orders.

The Middle District of Georgia also recently specified that only unvaccinated people need to wear masks in the public areas of the courthouse.

The District of Rhode Island will likely keep social distancing and masking in place even as proceedings return in person, McConnell said. His court, like many federal courts, consulted immunology expert.

Even with the new CDC guidance, Mueller said it will be difficult to know who is vaccinated. “We’ll probably have some blanket procedures in effect when we do reopen,” she said.

The Eastern District of Tennessee, for example, cited low vaccination levels and continued Covid-19 transmission in the state when it continued its entry restrictions, and masking guidance in a May 14 order.

Return to Court

For many courts, improving conditions mean they can start to conduct bench and jury trials in person again.

“With the increased availability of vaccinations, many court employees, as well as attorneys who practice before the court, are more comfortable with returning to work on site or appearing in person at the courthouse,” said Nannette Brown, chief judge of the Eastern District of Louisiana.

Brown said the Louisiana trial court expects to restart jury trials June 7.

Circuit courts are also making plans for in-person proceedings. The Ninth Circuit is hoping to return in person by September and is conducting a survey of lawyers about reopening concerns, clerk of court Molly Dwyer said.

M.C. Sungaila, a shareholder at Buchalter’s Orange County office and one of the attorneys who received that survey, said she would like to see is a procedure that would default to a remote argument if one party requests it or they can’t appear in-person.

“When you’re there, you have a different relationship with the judges, you can see different interactions with the judges,” Sungaila said. Having one party in person might create an uneven playing field, she said.

Adam Fels, a founding partner at Fridman Fels & Soto, said he’s excited to return to court and has upcoming in-person proceedings in California and Florida.

“The things we’re looking forward to is interactions with other lawyers and other clients,” Fels said. “A lot of what we’ve been doing is these virtual meetings. I still have clients I’ve never met in person.”

—With assistance from Andrew Wallender and Jasmine Han

(Updates with additional courts allowing vaccinated people to not wear masks.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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