The general thinking has been that public safety employers have the right to impose mandatory vaccinations against COVID-19 assuming: (1) that they discharge any obligation to collectively bargain over such a program; and (2) make reasonable accommodations for employees objecting to vaccination on religious or disability grounds. A lawsuit filed several weeks ago challenges those assumptions and argues that a mandatory vaccination program violates an entirely different set of federal laws.
The lawsuit was filed by Isaac Legaretta, an employee at the Dona Ana County Detention Center in New Mexico. The lawsuit alleges that County Manager Fernando Macias issued a Mandatory COVID-19 Vaccine Directive requiring first responders to receive a COVID-19 vaccination as a condition of ongoing employment.
Legaretta asked a federal court for an immediate ex parte temporary restraining order prohibiting the County “from taking any negative action” against Legaretta for refusing vaccination. Legaretta’s claim was that the Directive violated Section 360bbb-3 of Title 21 of the United States Code, entitled “Authorization for medical products for use in emergencies.” The Pfizer/BioNTech, Moderna, and Johnson & Johnson vaccines have all been approved under Emergency Use Authorizations (EUA) issued pursuant to Section 360bbb-3.
Under Section 660bbb-3, individuals to whom a EUA-approved vaccine or other medical product are administered must be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” The statute does not define what Congress meant by the phrase “consequences, if any, of refusing administration of the product,” though the context of the phrase suggests that Congress was describing medical consequences, not employment consequences. The FDA’s lengthy guidance on EUAs requires the FDA to ensure that recipients of a product approved under an EUA “have the option to accept or refuse the EUA product and of any consequences of refusing administration of the product.”
Legaretta’s contention is that the language of Section 360bbb-3 prohibits an employer from imposing a mandatory vaccination requirement as a condition of employment. The Court rejected Legaretta’s request for an ex parte temporary restraining order on procedural grounds, holding that “as Plaintiff has not been terminated and as a result of his refusal to take the vaccine has received only a ‘Coaching/Counseling Acknowledgement,’ which specifically states that ‘coaching/mentoring is not considered a form of discipline and is solely used as a tool for performance management,’ the Court finds that the facts alleged by Plaintiff do not clearly show that immediate and irreparable injury, loss, or damage will result to Plaintiff before Defendants can be heard in opposition. The Court thus finds no grounds to issue an order without providing Defendants with an opportunity to respond. It will, however, order an expedited briefing schedule on Plaintiff’s Motion.”
Legaretta v. Macias, 2021 WL 833390 (D.N.M. 2021).
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