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A growing number of workers hesitant about taking the COVID-19 vaccine are taking their bosses to court.
The swift adoption of synthetic biological cocktails to combat the pandemic, developed and scaled for human injection at record pace, is at the heart of an increasing number of lawsuits from workers. They argue that submitting to a novel drug to combat a still-mysterious virus shouldn’t be a condition of keeping their jobs.
In one of the latest lawsuits, 117 unvaccinated Texas hospital workers contend that their employer, The Methodist Hospital, is violating federal law and state public policy by firing workers over their refusal to take the vaccine, which still lacks full regulatory approval.
“The abbreviated timelines for the emergency use applications and authorizations means there is much the Food and Drug Administration (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 lawsuit states.
Houston Methodist did not respond to Yahoo Finance’s request for comment. According to the Washington Post, the hospital group’s president, Marc Boo, likened its COVID-19 vaccine mandate to flu vaccine mandates, saying health-care institutions can legally require them.
The Texas plaintiffs argue that COVID-19 vaccinations are specifically unlike flu vaccines, because they have undergone clinical trials resulting in full FDA approval.
Similar concerns have been introduced in suits pending in California, North Carolina, New Mexico. Legal threats from workers in Wisconsin, and students whose universities are excluding unvaccinated individuals from their campuses, are upping the ante as businesses prepare to call remote workers back to the offices.
Yet critics of the lawsuits highlight that the filings are the works of lawyers known to have advocated against vaccinations — and point out that immunology experts have pushed back on the plaintiff’s characterization of Pfizer-BioNTech’s (PFE) and Moderna’s (MRNA) mRNA vaccines as “gene modification injections.”
However, no controversy exists over the lawsuits’ central underlying facts. Plaintiffs hope they can use that to challenge prevailing legal thought: current vaccines are limited to use on an emergency basis (EUA), and their full FDA approval remains contingent upon results of yet-to-be concluded clinical trials.
‘A kind of leap’
According to the workers in Texas, a federal law that governs EUAs should preempt state and local laws that impose different or additional requirements on medical products under the authorization.
Under federal law, individuals must be given the option to accept or refuse any medical products limited to EUA, including COVID-19 vaccines, and must be advised of the vaccines’ known and unknown benefits and risks. Houston Methodist provided neither, they claim.
According to Matthew Bodie, a professor of law for St. Louis University and an expert on employee privacy law, the statute is silent on whether private employers must extend the same protections as the federal government. As a result, the plaintiffs’ augment may be tenuous but perhaps not impossible, Bodie told Yahoo Finance.
The argument is difficult “because the connection is not direct — there’s nothing in the law that specifically says private employers cannot require EUA vaccines,” Bodie said. “So there has to be kind of a leap from the federal EUA provision...to private employers.”
He added: “Telling the government it can’t do something is not the same as telling private employers,” — emphasizing why legal experts have largely concluded that private employers are at liberty to create their own vaccination rules.
And the theory faces additional challenges.
According to recently updated federal EEOC guidelines, requiring vaccines for employees who are physically entering the workplace does not violate federal employment laws, so long as employers comply with the accommodation provisions of the Americans with Disabilities Act (ADA) and Title VII, Aaron Holt, a board certified labor & employment attorney with Cozen O’Connor, said.
Still, a Texas court could hold differently, Bodie said.
“There’s a possibility the Texas court will say, ‘Under Texas law, we believe that there is a public policy here...that there should be an exception to the employment at will doctrine,’” the expert said. Alternatively, the court could adopt a separate theory that extends protections to unvaccinated workers, Bodie added.
University of California Hastings College of the Law professor, Dorit Rubinstein Reiss, described the EUA statute a “wrinkle.” Referencing Rutgers University students who object to the school’s mandatory vaccine policy, she told Inside Higher Ed that while the outcome of a challenge to the statute is not certain, the school’s policy stood on firm legal ground.
Another uncertainty is whether courts will consider the Centers for Disease Control’s (CDC) data in weighing whether workers and students who decline vaccination can be stripped of their jobs or education. According to the CDC, a small percentage but increasing number of fully vaccinated Americans have died from COVID-19-related illness.
As of April 26, among approximately 95 million fully vaccinated Americans — excluding deaths reported as asymptomatic or not related to the coronavirus — 112 reportedly died. Deaths among fully vaccinated Americans, excluding asymptomatic and non-COVID-19-related, increased to 183 as of May 10, when approximately 115 million Americans had received full vaccinations. As of May 24, the CDC said, the number climbed to 368, when approximately 130 million Americans were fully vaccinated. The agency's most recent data on more than 135 million fully vaccinated shows 447 deaths.
The CDC stopped monitoring all reported vaccine breakthrough cases as of May 1, to include only those cases resulting in hospitalization or death.
As part of their arguments, the workers’ lawsuits also stress that following World War II, allied nations agreed to adhere to the Nuremberg Code to prevent recurrence of tests performed by Nazi physicians on non-consenting individuals for malaria, epidemic jaundice, smallpox, and cholera.
The complaints go on to note the FDA’s characterization of the injections as “investigational products.”
Alexis Keenan is a legal reporter for Yahoo Finance and former litigation attorney. Follow Alexis Keenan on Twitter @alexiskweed.