First Mandatory Vaccination Lawsuits Filed Against Employers
By: Kiki Council
Employees in New Mexico and California have sued their employers seeking injunctive relief and potential damages due to vaccine mandates instituted in the workplaces.
According to the New York Times, approximately 40% of Americans are now fully vaccinated.FN1 Recently, the Centers for Disease Control and Prevention (“CDC”) revised its guidance, stating that fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, and local laws, including business and workplace guidance.
As vaccinations proliferate, many employers have been questioning whether to require that their employees be fully vaccinated before returning to work. As discussed in a previous blog post FN2, the EEOC issued guidance in December 2020, stating that employers may require employees to show proof of a COVID-19 vaccination before entering a job site, but employers should take care to provide reasonable accommodations for those who cannot receive the vaccine due to a disability under the ADA, or for sincerely held religious beliefs.FN3
However, neither of the present lawsuits against mandatory vaccines argue the employers violated their employment rights under Title VII or the ADA. Instead, both lawsuits focus their claims on the argument that federal law prohibits the mandating of medical products that are not approved by the U.S. Food and Drug Administration (“FDA”).FN4 None of the available COVID-19 vaccinations have been officially granted FDA approval, and instead are being administrated under emergency use authorization (“EUA”). The suits point out that the federal law governing EUAs require those being asked to take an unapproved medical product must be informed of the option to refuse the product, the consequences of refusal, and any available alternatives. The suits claim that the option to refuse the vaccine was not offered to employees, thus violating the requirements of the EUA statute.
Legal commentators have noted that it is unclear whether the EUA’s requirement that a recipient be notified of a right to refuse the vaccine does not necessarily mean that an employer can still require the vaccination as a term and condition of employment.FN5
Takeaway
We anticipate that lawsuits regarding mandatory vaccines will continue to proliferate throughout the year and are closely monitoring those suits. If you would like assistance navigating mandatory vaccinations in your workplace, please contact the attorneys at Campbell Litigation, P.C.
FN1 – Vaccine Rollout, The New York Times, last updated May 19, 2021, available at: https://www.nytimes.com/interactive/2020/us/covid-19-vaccine-doses.html?action=click&module=Spotlight&pgtype=Homepage
FN2 – The EEOC Provides Guidance on the Administration of COVID-19 Vaccines, The Rocky Mountain Employer, December 17, 2020, available at: https://www.rockymountainemployersblog.com/blog/2020/12/17/the-eeoc-provides-guidance-on-the-administration-of-covid-19-vaccines
FN3 – What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, United States Equal Employment Opportunity Commission, Last updated December 16, 2020, available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
FN4 – See Legaretta v. Macias, Case No. 21-CV-179 MV/GBW (D.N.M. Feb. 28, 2021) and California Educators for Medical Freedom v. The Los Angeles Unified School District, 21-CV-02388 (C.D. Cal. March 17, 2021)
FN5 – Getting to the Point – Issues Related to Mandatory Vaccine Policies, The National Law Review, April 21, 2021, available at: https://www.natlawreview.com/article/getting-to-point-issues-related-to-mandatory-vaccine-policies