Faegre Drinker previously reported on one of the first lawsuits challenging a COVID-19 vaccine mandate. As employers continue to evaluate employee vaccination, another lawsuit has been filed in the Central District of California, California educators for Medical Freedom et al v. The Los Angeles Unified School District et al., 21-cv-02388 (C.D. Cal. filed 3/17/2021).
The California Educators for Medical Freedom, along with seven employees of the Los Angeles Unified School District, are seeking injunctive relief and potential damages due to a vaccine mandate instituted in March of 2021. Plaintiffs were allegedly told that if they were not vaccinated by April of 2021, they could face a “job detriment, up to and including termination from employment.”
The plaintiffs assert that the vaccine mandate violates “Section 360bbb-3 and the FDA’s regulations, protocols, and guidance thereunder” and that this law and these regulations preempt any inconsistent laws of state or local governments. Specifically, plaintiffs assert that these federal regulations do not allow a vaccine mandate for “unapproved” products, including the COVID-19 vaccines that are authorized for emergency use only.
This lawsuit is premised on the fact that the COVID-19 vaccines currently in use are available under a preliminary Emergency Use Authorization (“EUA”) from the FDA. After an EUA, the manufacturer conducts extensive safety monitoring regarding the administration of the vaccine and continues clinical trials. Depending on outcomes, the manufacturer can then file an application with the FDA to convert the vaccine’s EUA into full approval.
Any recipient of an EUA vaccine must be advised via a Fact Sheet that the vaccine is investigational, and the decision to receive the vaccine is completely voluntary. Because the California Educators for Medical Freedom plaintiffs do not consent to receiving the COVID-19 vaccines, they allege that any vaccine mandate is preempted by federal law and therefore unenforceable.
Citing to the Nuremberg Code and drawing parallels to the medical experiments performed in the Nazi concentration camps, the plaintiffs further allege that they are being subjected to involuntary and inappropriate medical experimentation as codified under 42 U.S.C. § 1983. They assert that they have a liberty interest “secured by the Due Process Clause… international protocols and international treaties” that protects them from human medical experimentation without informed consent.
Finally, plaintiffs allege that mandatory vaccination violates a California law regarding medical experimentation, California Health & Safety Code § 24170 et. seq. They allege that the COVID-19 vaccines are experimental, that the mandate is facially void, and that they do not consent to receiving the COVID-19 vaccine. They seek to enjoin enforcement of the mandate and administration of the vaccine to any of the plaintiffs without their consent.
Since the start of the pandemic, there has been a flood of litigation related to COVID-19 and how workplaces have adapted to the pandemic. To help identify challenges employers face in developing not just employee but also guest, volunteer, customer, supplier and other third-party vaccination policies, Faegre Drinker has compiled a list of issues for organizations to consider.