In President Biden’s March 11, 2021 speech, he urged everyone to “stay vigilant” against the virus even as more vaccines are rolled out. The same applies to employers. Three recent developments—an employee lawsuit challenging mandatory vaccinations, new CDC guidance for those vaccinated, and a new OSHA enforcement program—all emphasize the uncertainties employers will continue to face through the spring and summer.
First Reported Challenge to a Vaccine Mandate
A detention center employee in New Mexico has filed what appears to be the first lawsuit in the country directly challenging an employer’s right to require its workers to receive a COVID-19 vaccine. The lawsuit represents the challenge employers will face in attempting to mandate employee vaccinations, particularly since vaccines were granted only emergency use authorization (EUA) by the Food and Drug Administration (FDA) rather than formal approval which requires a longer process. We have addressed these issues in a prior blog post on December 23, 2020. While the results of clinical trials and growing evidence show that the various COVID-19 vaccines are highly effective at preventing death or serious illness, the EUA approvals mean these vaccines are still experimental, which raises the risk of challenges.
The New Mexico employee complaint was filed on February 28, 2021 by a first responder, Isaac Legaretta, in the U.S. District Court for the District of New Mexico. According to the complaint, Legaretta works as a detention center officer in Las Cruces where the county has issued a mandatory directive ordering all first responders to receive the COVID-19 vaccination as a condition of ongoing employment, unless they have a documented ADA or EEO exception granted by the county human resources. Legaretta refused to comply with the mandate, contending that he cannot be forced to be a “human guinea pig” for a vaccine that did not go through the FDA’s usual and more time-consuming approval process. Legaretta further contends that the county mandate violates the language of the EUAs under which the vaccines were approved. Specifically, the applicable statute states that individuals to whom such vaccines are administered must be informed of the known and potential benefits and risks of its use “and of the option to accept or refuse administration of the [vaccine].” Legaretta’s complaint does not cite the remainder of this provision which addresses “the consequences, if any, of refusing” the vaccine, though he admits in the complaint that he was informed of the consequences of his refusal. This language is included in the information provided to each recipient of the approved COVID-19 vaccine. See Legaretta vs. Macias, et al. complaint.
District Judge Martha Vázquez issued an order on March 4, 2021 denying Legaretta’s request in the complaint for an immediate temporary restraining order and a preliminary injunction enjoining defendants from taking adverse employment action against him for refusing to take a “non-mandatory unapproved vaccine.” Judge Vázquez found that it would be inappropriate to take such action without allowing defendants an opportunity to respond, and, therefore, set a briefing schedule requiring defendants to file a written response to Legaretta’s request no later than March 15, 2021. See Judge Vazquez March 4, 2021 order. In their response, defendants argued that a preliminary injunction should not be granted because Legaretta failed to show that he will suffer irreparable harm if the injunction is not granted, failed to show a high likelihood of success on the merits, and failed to show that the potential injury Legaretta would suffer outweighs the harm to defendants. Under Judge Vázquez’s March 4th Order, Legaretta may file a reply no later than March 19, 2021.
We predicted these types of challenges, which are among the reasons we have recommended that employers in most industries not seek to mandate vaccines as a condition of employment at this time. There are still no federal or state laws that prohibit employers from requiring vaccinations as a condition of employment, though some employees may have protections under contracts, collective bargaining agreements or personnel rules for state and local employees. However employers will still have to deal with issues that include: the EUA status of these vaccines; the EEOC requirements that employers must consider reasonable accommodations under the ADA for employees with certain medical conditions and requests for waivers due to religious belief; continued scarcity of vaccines for several more months; and significant resistance to the vaccines, often based upon misinformation and fear. See December 23, 2020 blog post.
New CDC Guidance Illustrates Evolving Medical Knowledge
CDC and other experts continue to emphasize that there are still a number of unknowns about the vaccine, including how long any immunity will last and the effectiveness of the various vaccines against new variants of COVID-19. Officials want to assure vaccinated individuals that they can engage in some activities safely, while protecting those more vulnerable. In its latest update, the CDC advises that people who have been fully vaccinated can start to do some things that they had stopped doing because of the pandemic, such as gathering indoors with other fully vaccinated people without wearing a mask. However, fully vaccinated people are still encouraged to take precautions, including following specific guidance at their workplace. Importantly, the CDC advises that there is still a lot that we do not know about the vaccines, including how effective the vaccines are against variants of the COVID-19 virus and how well vaccines may help stop people from spreading COVID-19. CDC recommends that until more is known about these and other unanswered questions, everyone should continue taking basic prevention steps such as wearing a mask, staying 6 feet apart from others, and avoiding crowds and poorly ventilated spaces. See CDC guidance regarding vaccines. OSHA and CDC guidance has not changed, even as some states are rolling back requirements. As the CDC indicates, the number of employees vaccinated may be an important factor to maintaining a safe workplace, but is not decisive.
New OSHA Enforcement Program
Meanwhile, as we discussed in our recent blog post here in response to an Executive Order from President Biden on March 12, 2021, OSHA announced a new national emphasis program (NEP) focusing enforcement efforts on companies that put the largest number of workers at serious risk of contracting the coronavirus. OSHA also announced that it would be prioritizing complaints of retaliation against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law. The Executive Order also asked that OSHA consider whether to issue a regulation on COVID-19, rather than its current guidance. Such a regulation could be issued in the coming weeks.
As expected, the Biden Administration continues to take swift action to combat the COVID-19 pandemic and additional initiatives, executives orders and potential regulation may follow. We will continue to cover additional developments.