Jab or Job: If you Work for the Government, Can Your Bosses Force You to Get the New COVID-19 Vaccines?

If you work for federal, state, or local government, can you be forced to choose between being injected with the new COVID-19 vaccines and being fired? Two recent lawsuits say no.

These workers sued in federal court after being told they must be vaccinated against COVID-19 as part of their job. Central to both suits is the fact that these new drugs are not “FDA-approved,” but are available only under the FDA’s “Emergency Use Authorization” (EUA).

(I’ll address the rights of private sector workers in an upcoming post.)

The Cases

In the first lawsuit, Legarreta v. Macias, et al.[1] Isaac Legarreta, who works for a detention center in Dona Ana County, received a “Mandatory COVID-19 Vaccination Directive” requiring first responders to be COVID-19 vaccinated. Legarreta did not comply and was disciplined with a “coaching and counseling write up.” On February 28, Mr. Legarreta filed a lawsuit to get a court to order his employer to stand down from these coercive actions.

In the second lawsuit, California Educators for Medical Freedom, et al. v. The Los Angeles Unified School District,[2] workers for the L.A. Unified School District (LAUSD)—including teachers, counselors, an electrician, librarian, and carpenter—were told they would have to be injected with Moderna’s mRNA vaccine by April and could be fired if they refused. They banded together as the California Educators for Medical Freedom and filed suit on March 17. The following day, the school district announced the vaccinations are not mandatory “at this time.” The suit is proceeding anyway, to avoid a situation where the suit is withdrawn, and the employer then re-issues the directive.

Why Fight?

These workers cannot be dismissed as “anti-vaxxers.” Rather, they are opposed to being injected with THESE DRUGS. Why? Because:

• -These drugs are not “FDA-approved.” Instead, they’re under “Emergency Use Authorization.” In a public health emergency, “the FDA may issue an EUA to allow unapproved medical products… to be used in an emergency to diagnose, treat, or prevent COVID-19 when there are no adequate, approved, and available alternatives. “
• If you’re harmed by these drugs, for which there has not been any longterm testing, your remedies are limited.  The Public Readiness and Emergency Preparedness Act (PREP Act) gives the makers of these drugs immunity from any liability, except for “willful misconduct,” which is a much higher bar than the usual standard. Anyone harmed may seek compensation only from a government fund, and the amount of money that might be recovered from this fund may be less than your annual salary.
• The drugs aren’t normal “vaccines.” Unlike the usual vaccine, which contains a dead or weakened form of the virus to stimulate antibodies, these vaccines use a novel technology. The FDA says:

The vaccine contains a small piece of the SARS-CoV-2 virus’s mRNA that instructs cells in the body to make the virus’s distinctive “spike” protein. After a person receives this vaccine, their body produces copies of the spike protein, which does not cause disease, but triggers the immune system to learn to react defensively, producing an immune response against SARS-CoV-2.

• The drugs might not provide long-lasting immunity, and they might not prevent transmission. According to the FDA, “At this time, data are not available to determine how long the vaccine will provide protection, nor is there evidence that the vaccine prevents transmission of SARS-CoV-2 from person to person” (emphasis added). (This language can be found in EUA announcements for Pfizer, Moderna, J&J. )
• These drugs might be unnecessary for many healthy working-age people. According to the World Health Organization (WHO), “Most people infected with the COVID-19 virus will experience mild to moderate respiratory illness and recover without requiring special treatment.  Older people, and those with underlying medical problems like cardiovascular disease, diabetes, chronic respiratory disease, and cancer are more likely to develop serious illness.” The drugs appear to prevent and/or limit the severity of a disease for which most people already experience only “mild to moderate” symptoms.
• Indeed, the number of people who die as from becoming infected with the SARS-CoV-2 virus is roughly no more than one percent for healthy working age people. (These numbers are hard to nail down. A decent and noncontroversial compilation can be found at Wikipedia. A hard-to-figure-out chart based on risk by age is at CDC.) Most deaths, as the WHO statement indicates, involve comorbidities. Concluding whether COVID-19 caused a particular death is often difficult.
• These new drugs are experimental. They have not been subjected to long term testing. According to the California Educators:

 [T]he Moderna Vaccine uses messenger RNA (“mRNA”). Before last year, no mRNA-based vaccine had ever made it to human trials, because when injected in sufficiently high doses to render the desired effect, it triggered dangerous immune reactions, even resulting in death, in animal subjects, making it too dangerous to test on humans.  Even if that problem has been solved, given the severely telescoped timeline for development, no one knows at this time what will be the long-term effects of mRNA vaccine technology.  It is, by definition, experimental medicine … it can take years for the side effects of a new vaccine to manifest themselves.” (Paras. 70 & 49).

Legaretta states:

Even though the FDA granted emergency use authorizations for the Pfizer/BioNTech and Moderna vaccines in December, 2020, the clinical trials the FDA will rely upon to ultimately decide whether to license these vaccines are still underway and are designed to last for approximately two years to collect adequate data to establish if these vaccines are safe and effective enough for the FDA to license. The abbreviated timelines for the emergency use applications and authorizations means there is much the FDA does not know about these products even as it authorizes them for emergency use, including their effectiveness against infection, death, and transmission of SARS-CoV-2, the virus that is allegedly the cause of the COVID disease.

The Legal Arguments

These cases make two main legal arguments:

(1) Federal law prohibits administering unapproved, investigational drugs to people who do not consent, and that these rules “preempt” (override) contrary state and local rules.  If a government wants someone to take these drugs, it must inform the person of “the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown,” as well as that the person has the option to refuse the drug. 21 U.S. Code § 360bbb–3 – Authorization for medical products for use in emergencies.

(2) We have a right to be free from compulsory medical experimentation.  California Educators argue that such a right is enshrined in international law, that it grew from the Nuremberg Code on Permissible Medical Experiments, enacted in 1947 in response to Nazi atrocities. Point One of the Code: “The voluntary consent of the human subject is absolutely essential.” California Educators also allege a violation of California’s Protection of Human Subjects in Experimentation Act.

The plaintiffs in these cases don’t rely on employment law, such as the ADA (which takes center stage in cases against private employers), nor do they rely on jurisprudence concerning vaccinating children for school (which includes exemptions such as for medical, religious, and, in some states, philosophical reasons).

Going Forward

More complaints will be filed by government workers. They will need to argue for strict scrutiny of the effectiveness of these drugs against a public health emergency as well as pressure the premises the FDA relied on for its Emergency Use Authorizations: (1) public health emergency and (2) lack of alternatives.

• What is the nature of the emergency? That hospitals are overwhelmed? Employee absenteeism?
• Can a disease from which most people, especially healthy working-age people, will suffer only “mild to moderate respiratory illness and recover without requiring special treatment” justify mandatory vaccination of all public workers with an experimental drug?
• Could more targeted vaccination suffice, such as targeting people who at greater risk of more than mild to moderate illness? For example, a recent CDC study found that 78% of people hospitalized for COVID-19 were overweight or obese.
• If trustworthy evidence surfaces that these drugs do prevent transmission, could vaccination be limited to workers who regularly deal with vulnerable people?
• Instead of being fired, can workers be reassigned?
• Might these drugs’ side effects affect absenteeism?

Additionally, claims and studies favorable to the drug companies concerning efficacy and safety, and newly-discovered symptoms and harms from COVID-19 (and variants), should be rigorously vetted.

Plaintiffs’ lawyers are putting the track records of these BigPharma companies on trial. Taking drugs developed by companies with legal immunity requires enormous trust in BigPharma and for that matter the FDA — long accused of being captured and controlled by the very industries it regulates.

Slippery Slope?

The importance of these cases challenging mandatory vaccination cannot be overstated. Strip away the noisy politics, look at the issue generically, and ask yourself the following question.

If local, state, or federal government can coerce, through threat of job loss, their workers to be injected with a drug:

• available only under Emergency Use Authorization;
• that uses a new technology;
• that hasn’t been tested for longterm safety;
• and manufactured by BigPharma companies with less-than-stellar records for safety and honesty and with legal immunity;

to treat a disease:

• for which most people, according to the WHO, suffer only mild to moderate symptoms and recover without special treatment and
• for which the infection fatality rate for most people is less than one percent,

then what other drugs (or medical procedures) can be forced on government workers?

 

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[1] No. 2:21-cv-00179-MV-GBW (United States District Court, District of New Mexico, filed Feb. 28, 2021).

[2] No. 21-cv-02388 (United States District Court, Central District of California, filed Mar. 17, 2021).