Access to COVID-19 vaccines continues to expand in the United States and employers are navigating many questions surrounding employee vaccination and return to work. Current polling shows a substantial number of American workers are hesitant about or may refuse to be vaccinated against COVID-19. Now, an employee in New Mexico has filed what appears to be one of the first lawsuits opposing an employer’s vaccination mandate.
Isaac Legarreta works as a corrections officer at the Doña Ana County Detention Center in Las Cruces, New Mexico. According to the complaint Mr. Legarreta filed in federal district court, his employer issued a “Mandatory COVID-19 Vaccination Directive” requiring him to receive a COVID-19 vaccine as a condition of ongoing employment. Mr. Legarreta refused, and received a write-up instructing him that he must comply. On February 28, 2021, Mr. Legarreta filed suit seeking damages and asking the court to enjoin his employer from terminating his employment for refusing the vaccine.
The lawsuit asserts both statutory and constitutional claims against several government officials associated with Doña Ana County, New Mexico. First, Mr. Legarreta claims that 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 this language, Mr. Legarreta argues that the named defendants violated federal law by failing to inform him that he had the option to refuse the COVID-19 vaccine.
Second, Mr. Legarreta alleges retaliatory discharge, claiming that his termination for “refusing a vaccine which 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 that injunctive relief is still available.
Third, Mr. Legarreta claims that 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 Supreme Court case law. The complaint acknowledges that a prior Supreme Court decision held “that a state law requiring vaccination was valid,” but asserts that case was decided “116 years ago when many of our most sacred and fundamental rights were still being sorted out.”
It is not clear how the court will address these claims, but Mr. Legarreta appears to be facing some hurdles. First, the defendants may argue that Mr. Legarreta may not pursue at least some of the asserted claims against them individually. Second, the Equal Employment Opportunity Commission issued guidance in December 2020 stating that employers may require vaccination pursuant to 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 vaccination due to disability or religious-based concerns. Third, even accepting the claim that Section 360bbb-3 stands for the proposition that an individual must be informed by their employer (or individual managers of their employer) of “the option to accept or refuse” the vaccine, the statute also explicitly contemplates informing the individual of the “consequences” of refusal. In this case, the Mandatory COVID-19 Vaccination Directive issued by Doña Ana County and subsequent communication to employees informed those employees that they had the opportunity to contact human resources to seek an accommodation if they had “ADA or EEO” related concerns regarding the vaccination requirement, and that, absent a granted accommodation, vaccination is a requirement and condition of ongoing employment with the County. This communication by Mr. Legarreta’s employer arguably satisfied the requirements of Section 360bbb-3 (to the extent the named individual defendants were required to do so).
The retaliation and constitutional claims may also be 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 that the Supreme Court has previously deemed state-mandated vaccination requirements valid.
While this lawsuit may or may not be a harbinger of litigation to come, employers considering requiring employees to receive the 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.To help make sense of the maze, Faegre Drinker has compiled a list of issues organizations should consider as they set policy and communication plans regarding on-site work and COVID-19 vaccines. We will continue to provide developments as they arise and partner with organizations to manage workforce safety imperatives, as well as legal and reputational risks.