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Vaccine Mandate Lawsuits Sparked by Shots’ Emergency Status

June 7, 2021, 9:16 AM

The Covid-19 vaccines’ status as an emergency product has fueled initial lawsuits against employers requiring inoculations, giving workers a legal toehold to contest management’s broad authority to make vaccination a condition of employment.

Houston Methodist Hospital, a health care system with 26,000 employees, recently joined a handful of other employers that were hit with claims that they can’t legally impose an inoculation mandate. The lawsuit filed by hospital employees in late May argues that requiring them to take the vaccines violates the principles of the Nuremberg Code, which was established in response to Nazi human experimentation on concentration camp victims.

At least three other lawsuits challenging employer Covid-19 vaccine mandates use the same basic legal argument—though not the same level of inflammatory rhetoric. The workers suing Houston Methodist, the Los Angeles Unified School District, a sheriff’s department in North Carolina, and a detention center in New Mexico all say the vaccines cannot be mandatory because they’re only authorized for emergency use.

The section of federal drug approval law cited in the lawsuits, which appears to relate to notice requirements, is an “extraordinarily thin” basis for legal challenge to employer mandates, said Nicholas Bagley, a University of Michigan law professor who’s written about health law and regulatory policy.

But the threat of lawsuits against employer mandates premised on the vaccines’ emergency authorization has given skittish human resource and legal departments an excuse to forgo workplace inoculation requirements, Bagley said. Many companies and institutions have received letters threatening litigation against mandates, he said.

“The fact so few lawsuits have been filed is a mark of the anti-vax movement’s success in that it’s made vaccine mandates politically toxic for employers,” he said.

Management’s Power

Employers generally have the legal power to set rules in the workplace and enforce them under the penalty of termination. Workplace vaccination mandates for influenza, measles, mumps, rubella, and other infectious diseases have been commonplace in health care for years.

The Equal Employment Opportunity Commission recently confirmed that employers can require workers to get vaccinated against Covid-19, although they may need to make reasonable accommodations for workers who turn down the jab due to a health condition or a religious belief.

An employer could face a discrimination lawsuit if enforcing its vaccine mandates has a disparate impact on workers based on their race, color, religion, sex, or national origin, the EEOC noted. That’s a live issue because some demographic groups might need to overcome barriers to get inoculated that others don’t, the commission said.

Outside of potential cases of unintentional discrimination, however, the ambiguous language in federal regulations for emergency medical products provides workers with a way to mount blanket challenges to vaccination mandates that they wouldn’t otherwise have, legal observers said.

VIDEO: As employers are making plans to return to their workplaces. How quickly they succeed will likely depend on how many of their employees get vaccinated.

More Lawsuits Coming?

The argument that employers can’t require Covid-19 vaccinations is based on rules related to the U.S. Food and Drug Administration’s sped-up procedure for authorizing medical products during a public health emergency. Those rules contain a section that refers to such products as “unapproved” and states individuals have an option to refuse them.

No government agency or court interpreting that section has said it prohibits employers from taking action against workers who refuse to comply with a vaccine mandate, legal observers said.

Thus far, those mandates have been relatively uncommon. Even before the vaccines were approved, management lawyers said that companies would be better off encouraging and incentivizing workers to get inoculated.

The most widespread exception to that reluctance has been in higher education. Hundreds of colleges and universities have instituted vaccine requirements for students, with many including staff.

Those mandates take effect in the fall, so there hasn’t been a rush to sue schools to stop them, said Dorit Reiss, a law professor at the University of California Hastings College of the Law who specializes in vaccine policy.

“We will see them,” she said.

But the legal landscape will shift after vaccine mandates get full FDA approval. The change in regulatory status also will likely encourage more employers to require the jab.

Full approval could come in the fall for the vaccine developed by Pfizer Inc. and BioNTech SE, which applied in early May, and for the one made by Moderna Inc., which put in its application last week. Johnson & Johnson is further behind, having received emergency authorization for its vaccine about two months after the other two.

Legal Claims

The lawsuits against vaccine mandates feature a variety of legal claims premised on the language about emergency medical products.

Those claims include that mandates are preempted by federal law and violate due process rights to be free of unwanted medical experimentation.

Several Los Angeles Unified School District workers and an employee group dubbed the California Educators for Medical Freedom argued that the school district’s requirement runs afoul of state law regulating human medical experiments. A deputy sheriff in North Carolina who was fired for refusing the vaccine lodged a wrongful termination claim.

The lawsuit against Houston Methodist includes claims of wrongful discharge and violation of Texas’ public policy exception to the at-will employment doctrine, which otherwise permits employers to fire workers for any legal reason.

The Texas Supreme Court created the exception in its 1985 ruling in Sabine Pilot Service v. Hauck, which said it was illegal for a company to fire a worker for refusing to break the law.

Houston Methodist: 99% Compliance

Jared Woodfill, the attorney for more than 100 Houston Methodist workers, said he plans to amend the complaint to add 40 to 50 new plaintiffs who’ve contacted him since the lawsuit was filed.

Woodfill, the former chair of the Harris County Republican Party who was later involved in litigation challenging ballots cast in the 2020 presidential election, said he’s also preparing EEOC charges on behalf of hospital workers who were denied health and religious accommodations to the vaccine mandate.

In addition to allegations of Nuremberg Code violations, the lawsuit also accused the hospital of forcing their workers to be “human ‘guinea pigs’” and focusing on “profit, not people.”

Houston Methodist President and CEO Marc Boom said it’s “unfortunate” that a portion of the 1% of employees who haven’t met the vaccine mandate responded by suing the hospital.

“It is legal for health care institutions to mandate vaccines, as we have done with the flu vaccine since 2009,” Boom said in a statement. “The COVID-19 vaccines have proven through rigorous trials to be very safe and very effective and are not experimental.”

The lawsuit’s rhetoric comparing the vaccine mandate to human rights violations is “misguided and flat-out offensive,” said Eric Feldman, a University of Pennsylvania professor of law, health policy, and medical ethics.

Although a judge can wave them away, such incendiary claims may persuade members of the public who hear about the lawsuit, legitimating their skepticism about the Covid-19 vaccines, Feldman said.

“Over the past 15 months, we’ve seen how this infectious disease has become an infectious political vehicle,” he said.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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