Access to COVID-19 vaccines continues to expand in the United States, and employers are navigating many questions about employee vaccinations and return to work. Current polling shows a substantial number of workers are hesitant about getting the shots or may refuse to be vaccinated against the virus. Now, a New Mexico employee has filed what appears to be one of the first lawsuits opposing an employer’s vaccination mandate.
Facts
Isaac Legarreta works as a corrections officer at the Doña Ana County Detention Center in Las Cruces, New Mexico. According to the complaint he filed in federal district court, his employer issued a “mandatory COVID-19 vaccination directive” requiring him to receive the vaccine as a condition of ongoing employment. He refused to follow the directive and received a write-up letting him know he must comply.
On February 28, 2021, Legarreta filed suit seeking damages and asking the court to enjoin (or block) his employer from terminating him for refusing to get the shots.
Gist of Employee’s 3 Claims
Legarreta’s lawsuit raises both statutory and constitutional claims against several government officials associated with Doña Ana County:
“Unapproved” medical product. First, Legarreta claims the vaccine mandate communicated to him directly violates 21 U.S.C. § 360bbb-3, which governs the emergency authorization of “unapproved” medical products. “Unapproved” products include those that are authorized for emergency use but not yet approved through the standard approval process.
Section 360bbb-3 requires the secretary of health and human services to establish conditions designed to ensure (among other things) that individuals “are 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.” Based on the language, Legarreta argues the defending parties violated federal law by failing to let him know he had the option to refuse the COVID-19 vaccine.
Retaliatory discharge. Second, Legarreta alleges retaliatory discharge, claiming his termination for refusing a vaccine that “federal law requires not to be mandated” would violate New Mexico law. He acknowledges that, because he is a state employee, sovereign immunity precludes a retaliatory discharge claim seeking damages, but he maintains injunctive relief is still available.
Due process rights. Third, Legarreta claims the mandatory vaccination program violates his due process rights under the 14th Amendment and constitutes an “invasion of the zone of privacy and right to bodily integrity” recognized under U.S. Supreme Court case law. The complaint acknowledges a previous Supreme Court decision found “a state law requiring vaccination was valid” but asserts the case was decided “116 years ago when many of our most sacred and fundamental rights were still being sorted out.”
Employer’s Possible Arguments
It’s not clear how the court will address Legarreta’s claims, but he appears to be facing some hurdles:
- First, the defending parties may argue Legarreta can’t pursue at least some of the asserted claims against them individually.
- Second, the Equal Employment Opportunity Commission (EEOC) issued guidance in December 2020 stating employers may require COVID-19 vaccinations under a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace,” subject to potential accommodation obligations for individuals objecting to the shots over disability or religious-based concerns.
- Third, even accepting the claim that Section 360bbb-3 means an individual must be informed by their employer (or its individual managers) of “the option to accept or refuse” the vaccine, the statute also explicitly contemplates informing the individual of the “consequences” of refusal.
In the Doña Ana County case, the vaccine directive and subsequent communication let employees know (1) they could contact HR to seek an accommodation if they had Americans with Disabilities Act (ADA) or equal employment opportunity-related concerns about the vaccination requirement, and (2) absent a granted accommodation, the shots were a requirement and condition of ongoing employment with the county. The communication by Legarreta’s employer arguably satisfied Section 360bbb-3’s requirements (to the extent the named individual parties were required to do so).
The retaliation and constitutional claims also may face an uphill battle. Retaliation claims generally require an employee to have engaged in protected activity. While refusing an employer’s directive to engage in unlawful activity may qualify as protected activity, refusing a legitimate directive, in most cases, does not. As for the constitutional claim, the complaint itself acknowledges the Supreme Court has previously deemed state-mandated vaccination requirements valid.
Tread Carefully
While Legarreta’s lawsuit may or may not be a harbinger of litigation to come, employers considering requiring employees to receive the COVID-19 vaccine should tread carefully. The considerations surrounding workplace vaccination programs are complex, from business justifications and accommodation issues to public relations pitfalls and myriad litigation risks.
Daniel G. Prokott, Sean R. Somermeyer, and Raphael B. Coburn are attorneys with Faegre Drinker. You can reach them at daniel.prokott@faegredrinker.com, sean.somermeyer@faegredrinker.com, and raphael.coburn@faegredrinker.com.