McMahon Berger attorney Stephen Maule noted back in his January post discussing employer vaccination policies that the question of whether an employer can require its employees to be vaccinated against COVID-19 contains many legal complexities that eventually courts will be called on to address. As predicted, here come the lawsuits.
Issac Legaretta, an employee of the Dona Ana County Detention Center, recently filed a lawsuit in the United State District Court of New Mexico against his supervisors claiming that the Detention Center’s mandatory COVID-19 vaccination directive for employees was illegal under Federal law.
Dona Ana County Detention Center issued a directive to all first responders requiring them to receive a COVID-19 vaccination as a condition of their employment. The directive contained an exception to the mandatory vaccination policy for those with a qualifying condition. Legaretta alleged he received a write-up for not complying with the policy and feared that he was in imminent danger of termination for refusing to accept a vaccine. Legaretta filed a lawsuit seeking that a court declare that employers cannot coerce an employee to accept an Emergency Use Authorization (EUA) vaccine on penalty of termination or other sanctions and that his employer cannot require him to take a COVID-19 vaccine.
Legaretta generally alleges in the lawsuit that an employer’s mandatory vaccination policy that requires vaccination with a vaccine only approved for EUA is in direct violation of Federal law at 21 U.S.C. § 360bbb-3 – Authorization for medical products in emergencies. More specifically, he claims that because COVID-19 vaccines are only authorized under EUA, his employer was required to advise him of the known and unknown potential benefits and risks of the vaccine and of the option to accept or refuse administration of the product. He also alleges that Federal law preempts any state or local laws or mandates on the issue and, therefore, not giving individuals the right to refuse to take a COVID-19 vaccine only authorized for EUA violates federal law.
Courts across the country are likely to be confronted with this same or a similar argument in the coming months as it appears to be a question of first impression. One argument that likely will be raised against Legaretta’s lawsuit is that the employment relationship is at-will, and an employee that does not wish to take an employer’s safety measure may simply terminate their employment relationship with the employer. Further, courts will have to address guidance from both the Equal Employment Opportunity Commission (EEOC) and Occupational Safety and Health Administration (OSHA) that allow mandatory vaccine policies as long as they are not contrary to state law and address accommodations for those with a disability or certain religious beliefs.
If an employer understands the risk of litigation related to implementation of a mandatory vaccination policy but wishes to proceed, there are some additional actions that can be taken to reduce or limit possible exposure, including:
- Ensure any mandatory vaccination policy addresses requests for accommodations under the Americans with Disabilities Act;
- Ensure that any mandatory vaccination policy addresses requests for religious accommodations under Title VII of the Civil Rights Act;
- Determine whether an accommodation is necessary for any employee who refuses to get the vaccine, such as a work from home arrangement or a temporary leave of absence;
- Educate employees to the greatest extent possible before issuing a mandatory vaccination policy to minimize confusion and refusal once a policy is issued;
- Ensure compliance with state laws that may be implicated by a mandatory vaccination policy.
As we previously noted, considerations of vaccination as part of a safe workplace are particularly important because of potential employer liability under state workers’ compensation laws and the absence of an employer liability shield in Congress’ most recent COVID-19 legislation. There continues to be many issues for employers to consider in determining whether mandatory COVID-19 vaccines are the right choice for their workplaces. As with any such decision, consultation with legal counsel is advised, as is a review of existing policies and procedures which may be implicated by such a requirement. It is too soon to tell whether Legaretta’s recently-filed lawsuit in New Mexico, or other anticipated lawsuits, will result in liability to the respective employers. We will continue to monitor developments in this rapidly developing area and keep you updated as these cases progress.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
