Mandatory vaccine use for COVID-19 is starting at many universities and a few employers. Many more employers will soon mandate vaccines for employees and perhaps visitors to the workplace. Some people believe they have a legal basis to challenge such requirements. As an experienced education and employment litigator, I think not.
The first case has been filed in New Mexico by an employee who faced discipline for refusing a COVID-19 vaccine. In the first skirmish, in that case, the judge ruled against the employee on March 4, 2021. Legeretta v Macias 21 cv 179 (D NM 2021)
In that case, the employee’s lawyer is relying on a federal law getting lots of play on the web— 21 US. 360bbb., a section of the Federal Food Drug and Cosmetic Act. There is a provision in that law that requires informing people of the consequences of not taking an experimental vaccine. The employee is likely to lose.
- It is not at all clear that this law applying to doctors giving experimental drugs applies to employers.
- The purpose of the law is to expand access to experimental treatments to people who are otherwise in danger. It is not to prevent employers from mandating vaccines.
- There is no reason to believe there exists a right of “private action” under the law — a right to sue. This particular law is generally enforced through regulatory action by the FDA.
In reality, we can expect the FDA to remove the “experimental” status of Pfizer and Moderna any day. And the law then becomes even clearer.
Even while the vaccines are labeled “experimental” however, the EEOC has already provided guidance as of December 2020 that employers may mandate covid 19 vaccines and may fire people who don’t take them— even for the reason of religion or disability. Courts may or may not follow that guidance — but I think they will for reasons discussed below.
Once the vaccine becomes authorized as not “experimental,” then requiring vaccines is not controversial in the law even if it is currently a political and cultural dispute.
The US Supreme Court established a clear precedent in Jacobson v Massachusetts, 197 US 11 (1905) upholding laws mandating vaccines.
Another claim popular on the web is that the Nuremberg laws prevent experimenting on people. Federal law denies a direct right to sue under these laws. Ammend v BioPort, Inc., 322 F Supp. 2nd 848, 872-73 ( WD Mich 2004)
Judges do listen to context and try to make sense of a dispute. From that perspective might a sympathetic judge stop a mandated vaccine citing to the Americans with Disabilities Act or the constitution or some other ground? There may be an occasional opinion, but they will get overturned on appeal.
If the practice of taking the covid vaccines were truly an unusual medical requirement unsupported by the medical and governmental establishment, the outcome would be different.
However, in the case of the covid vaccines, a judge will likely accept the following argument:
The Pfizer and Moderna vaccines are “experimental” only in the sense that a panel of the FDA has not voted them “authorized”. In every other sense, they are established medical treatments.
The President has strongly encouraged all Americans to get a vaccine. Even the former President took the vaccine. One hundred million Americans have followed suit with over 200 million doses administered. That is no longer an experiment.
Medical treatment ordinarily affects only the person receiving the treatment. But this pandemic vaccine is an exercise in collective security— like other public health measures.
Herd immunity depends upon a very large number of people taking the vaccine. Why does herd immunity matter? Because Covid will continue to mutate and create variants as long as it is present in the population.
Covid has killed more than half a million Americans, but thankfully very few children. Try to imagine a variant that primarily killed children. The longer we wait until achieving herd immunity, the greater the likelihood that happens. A judge will imagine that and weigh the responsibility of organizations to contribute to the public good and protect their own employees, customers, and students through mandated vaccines.
Judges make decisions trading personal liberty versus public health and safety routinely. A person may confidently believe they can drive safely above .08 blood alcohol level, but the judge cares more about the potential victims of the future accident than the liberty of the driver. Individual smokers would prefer to smoke inside buildings and airplanes, and they historically had a right to do so, but their rights are trumped by the dangers of second-hand smoke to others.
Sometimes — like with mandatory motorcycle helmet or seatbelt laws— judges even sacrifice individual liberty because of the collective medical bills resulting from the choices of the individual.
Judges also rule against the individual liberty of employees when it costs employers money or even a certain amount of inconvenience. For instance, religious people cannot avoid working on the Sabbath if the employer mandates them to do so for a good reason. Employers can set dress codes and grooming requirements.
So I expect these lawsuits challenging mandatory vaccines to occur, but I expect them to fail. An indication that my analysis is correct emerged in late April when the US District Court for the Eastern District of Michigan established rules governing entrance into federal courthouses in Detroit, Ann Arbor, Flint, Bay City, and Port Huron. These courts have been closed for a year except for Zoom hearings. Now they will reopen —- but the court discriminates in its new procedures that apply to lawyers and witnesses based upon the vaccinated status of the person coming into the court.
There are serious philosophical and legal grounds to support individual liberty, but liberty is not the only American value. And judges rule against it every day. So the public debate will continue. But increasingly, unvaccinated people may find themselves limited where they can work or go.