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By: Michael Hirota
As the COVID-19 vaccine becomes more widely available within the United States, many employers are grappling with how to incorporate employee vaccination into their return-to-work requirements. Two recent lawsuits in New Mexico and California challenging mandatory vaccination policies represent the first lawsuits in what could be a new type of COVID-19 litigation in the coming year.
Earlier this year, New Mexico corrections officer Isaac Legaretta has sued his employer, the Dona Ana County Detention Center, when it issued a “Mandatory COVID-19 Vaccine Directive” requiring first responders to receive a COVID-19 vaccination as a condition of ongoing employment. Legaretta sought a temporary restraining order enjoining his employer from terminating him. Though the District Court denied his motion for a temporary restraining order, Legaretta has filed a motion for leave to amend, claiming that since the filing of the initial Complaint, Legaretta was demoted and subjected to a hostile work environment, resulting in his constructive termination. The motion for leave to amend also seeks to add a second plaintiff, Anthony Zoccoli, who was allegedly fired for not consenting to be vaccinated.
In Los Angeles, California, several employees of the Los Angeles Unified School District filed a federal lawsuit seeking to enjoin LAUSD from implementing a mandatory vaccination policy. The employees allege that LAUSD’s vaccine mandate constitutes nonconsensual human experimentation in violation of State, Federal, and international law. Hearing on the employees’ Motion for Preliminary Injunction in the LAUSD case is currently set for May 17, 2021.
Both lawsuits focus primarily upon the lack of Food and Drug Administration approval for any currently-available vaccines, arguing that the federal regulations do not permit a vaccination mandate for “unapproved products.”
One hurdle that these lawsuits face is the guidance promulgated by state and federal regulatory agencies which seems to allow employer-issued vaccine mandates assuming the proper accommodations are explored for protected employees unable to receive the vaccine. On December 16, 2020, the EEOC issued guidance suggesting that a vaccine mandate is permissible assuming proper consideration is given to ADA and Title VII issues by the employer requiring the vaccine.
Similarly, on March 4, 2021 the California Department of Fair Employment and Housing also promulgated guidance on mandatory COVID-19 vaccination policies. Though the DFEH refused to provide guidance on whether an employer should implement such policies, it did state that an employer may require employees to receive an FDA-approved vaccination against COVID-19 “so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to the disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity.”
In light of this recent guidance by the EEOC and other agencies, many employers may wonder whether they can enact similar vaccine mandates for their employees. Even assuming FDA approval of one or more of the available vaccines, the answer, unfortunately, is the famous lawyer mantra: “it depends.”
While an employer may be able to construct a program mandating that all employees receive a COVID-19 vaccine, the policy must nevertheless comply with all applicable anti-discrimination laws and statutes. In particular, an employer must conduct an individualized assessment as to whether an unvaccinated employee would pose “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” An employer must also design this program to ensure that it can address an employee’s requests for exemptions based on (i) medical conditions which make receipt of the vaccine dangerous or otherwise inappropriate for that individual or (ii) sincerely held religious beliefs protected under Title VII.
If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. However, the employer would still need to assess whether terminating the employee would run afoul of any EEO, federal, state, or local statutes.
Finally, both the New Mexico and LAUSD lawsuits are based heavily on the current lack of FDA approval for any of the available COVID-19 vaccines (which are being issued through the FDA’s Emergency Use Authorization procedures). Thus, it is possible that these and similar claims will be rendered largely moot if one or more of the vaccines receive FDA approval.
Employers looking to secure their workplaces and return to relative normalcy through a vaccine mandate should consult with experienced employment counsel to help navigate the complex and constantly-evolving landscape of federal, state, and local laws and regulations.
For more information, please contact Michael Hirota at [email protected].