By Jack Karp

Law360 (April 12, 2021, 4:34 PM EDT ) A pair of challenges to employers' COVID-19 vaccination requirements may be the first in a coming wave of such suits, say attorneys, but the untested nature of their claims, their focus on the vaccines' unapproved status and government guidance make them unlikely to succeed.

New Mexico detention center employee Isaac Legarreta sued Doña Ana County in February after the county required its first responders, including detention center officers, to be vaccinated against the coronavirus. A few weeks later, a group of California teachers sued the Los Angeles Unified School District over a similar mandate aimed at district employees.

The suits' largely untested claims could be early harbingers of more challenges to employer vaccine mandates to come, especially as eligibility for the vaccines expands, say employment and public health attorneys.

"These lawsuits will not be a flash in the pan," according to Richard Warren, principal at Miller Canfield Paddock & Stone PLC and deputy leader of the firm's employment group. "I think we will see challenges across the entire country."

But the suits could also foreshadow the very steep uphill climb these cases will face in court.

"The chances of either of these cases making their way past summary judgment and through the end of a trial, like any lawsuit in the employment arena," Warren said, "are close to zero."

Uncharted Territory

Both lawsuits center on claims that federal law prohibits the mandating of medical products that aren't approved by the U.S. Food and Drug Administration. None of the COVID-19 vaccines have been officially granted that approval, the suits point out, and they are all being administered under emergency use authorization.

"Why should a person be forced to take a vaccine that hasn't been approved yet, that is still experimental in many ways?" asked Jonathan Diener, one of the attorneys who filed the New Mexico suit on behalf of Legarreta. "Why should they be forced to do that as a condition of employment?"

Under the federal law governing EUAs, those being asked to take an unapproved medical product must be informed of the option to refuse the product, the consequences of that refusal and any available alternatives to the product.

The option not to take the vaccine was not offered to employees, the suits claim.

"Not only are they not being informed of that, they're being told if they refuse it, there will be consequences," said N. Ana Garner, Diener's co-counsel in the New Mexico suit.

But it's not actually clear that the law's requirement that potential vaccine recipients be notified of their right to refuse the drug means the vaccines can't be mandated, according to Natalie Pattison, a member of Barran Liebman LLP's employment practice. "It is essentially untested legal theory at this point," she said.

Doña Ana County insists that the statute doesn't mean vaccinations can't be required.

"At most, the statute requires potential vaccine recipients to be informed of the consequences of refusing the vaccine," the county said in a March response to Legarreta's bid for a temporary restraining order and preliminary injunction.

Attorneys for the county did not respond to requests for comment.

There is also disagreement over whether the FDA regulations apply to private employers or just government actors, according to Daniel G. Prokott, an employment partner at Faegre Drinker Biddle & Reath LLP.

That controversy creates another "wrinkle" that complicates the issue since both employers in these cases — Doña Ana County and the Los Angeles Unified School District — are government entities, according to Georgetown University Law Center professor Lawrence Gostin, who is the director of the World Health Organization Collaborating Center on National and Global Health Law.

"We are in a gray zone," he said.

And it's unclear whether the "consequences" an employee must be informed about refers to medical consequences or employment consequences, Prokott said. Legarreta was informed of the employment consequences of his choice not to take the vaccine, which could satisfy his employer's obligations under the statute.

"They are definitely interesting arguments," Prokott said, but "like many things COVID-related, we are in a bit of uncharted territory on some of these issues."

Coming Vaccine Approval

The suits could also be made moot if the FDA grants official approval to the vaccines, which is likely to happen soon, attorneys say.

Both suits center their claims on the unapproved nature of the vaccines. The California suit in particular insists that by mandating unapproved vaccines the school district is forcing employees to undergo involuntary medical experimentation in violation of California law — and even the Nuremberg Code, developed in the wake of Nazi experimentation on concentration camp inmates during the Holocaust.

It's a "fascinating" claim but also a "very inflammatory" one, said Robert Duston, an employment lawyer and partner at Saul Ewing Arnstein & Lehr LLP.

It is certainly unusual for a vaccine to be mandated before it is fully approved, Duston and other attorneys say, but that is a far cry from subjecting workers to forced medical experimentation.

"You don't want to take it, fine, but there may be adverse employment consequences," Duston said. "That's not medical experimentation."

In a statement, a school district spokesperson told Law360, "Los Angeles Unified has not mandated COVID-19 vaccinations for employees. Instead, we are providing access to the vaccine for all who work in schools and encouraging them to get vaccinated. The choice is theirs."

Attorneys for the suing teachers did not respond to a request for comment.

But the plaintiffs' strategy in both suits could easily backfire. The FDA is likely to grant full approval to the Pfizer vaccine this summer and to the Moderna and Johnson & Johnson vaccines by September, according to Duston.

"And then that whole argument that you're making someone a guinea pig disappears," Duston said.

Garner and Diener say that FDA approval could potentially undercut some of the claims in their suit. They say their case will likely move to focus on constitutional claims that the mandates violate employees' due process rights under the 14th Amendment if and when that approval comes.

In March, they withdrew their motion for a temporary restraining order and preliminary injunction so they could amend their complaint and add a new plaintiff who they say has been fired from the Doña Ana County Detention Center for refusing to take the vaccine.

But the withdrawal "is a bit telling," Prokott said. "I think it shows that these lawsuits could be challenging for plaintiffs."

EEOC Guidance

Whether the vaccines are approved soon or not, the suits still have to contend with guidance issued by the Equal Employment Opportunity Commission, attorneys insist.

That December guidance "says mandatory vaccination programs are basically lawful," according to Warren.

In California, where the teachers' suit will play out, that state's Department of Fair Employment and Housing issued its own opinion in March that employers can require employees to be vaccinated against COVID-19, according to Kimberly M. Jansen, a partner at CDF Labor Law LLP.

And the EEOC guidance specifies that it applies to vaccines under emergency use authorization, Gostin said. "I think that argument would prevail in the courts," he added.

That doesn't mean employers have "blanket protection" from all legal challenges, Warren said, "but it gives them a leg-up toward resisting any suits."

Under the EEOC and California state guidance, employers do have to provide reasonable accommodations for workers who have disabilities or sincerely held religious beliefs. But there is no requirement that employers accommodate workers who simply dislike or mistrust the vaccines, according to attorneys.

"An employee's good-faith belief that the vaccine isn't safe does not require an accommodation," Jansen said.

Employers should still be careful, Prokott said. If an employee does decline to be vaccinated over a good-faith concern about the vaccine's safety and they are fired as a result, they could claim they've been retaliated against for raising concerns about workplace safety.

"That could be a risky fact pattern for that employer," he warned.

Complications like these are why the vast majority of employers are not choosing to make the vaccine mandatory for employees — yet, attorneys say.

"What the overwhelming majority of employers that I talk to want to do and are in fact doing is taking steps to encourage rather than mandate the vaccine," Prokott said.

That's why there have been few suits like the ones in New Mexico and California so far, according to attorneys, and how many more suits end up being filed will depend on what employers finally decide to do.

If most employers continue to shy away from mandates, there may only be a smattering of these lawsuits. But if a larger number require their workers to be vaccinated, "I wouldn't be surprised to see an avalanche of lawsuits," Gostin said.

Garner says she's already received hundreds of emails and phone calls from others wanting to file legal challenges similar to the one she filed in New Mexico.

Jansen said, "There are many people who are against vaccinations and do not wish to be vaccinated. Most of these people have jobs."

So for now, these attorneys say they're advising clients to hold off on mandating COVID-19 vaccinations for their employees and wait to see what happens.

Employers shouldn't worry about vaccine mandates until at least August or September, Duston said, when the vaccines are likely to be approved and states could begin mandating vaccination for students, which may give cover to employers to do the same.

He doesn't recommend that his clients mandate vaccinations at this time, he said.

"And that's my magic words," he added. "'At this time.'"

--Editing by Orlando Lorenzo and Emily Kokoll.

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