Employment Law Alert: Employee Challenges Constitutionality of New Mexico County Directive Requiring All First Responders To Receive COVID-19 Vaccine

In what may be the first of many lawsuits, a New Mexico county prison guard has filed a lawsuit challenging a directive requiring all first responders to receive a COVID-19 vaccine as a condition of continued employment. The lawsuit is particularly significant because it is the first of its kind challenging a mandatory vaccination order as unconstitutional under the 14th Amendment. The allegations also contrast the most recent guidance from the Equal Employment Opportunity Commission (EEOC) which generally advises that employers may require employees to be vaccinated as a condition for returning to work.

The prison guard’s allegations and argument are strikingly similar to those made in the Supreme Court case of Jacobson v. Massachusetts dating all the way back to 1905. Jacobson involved a Cambridge, Massachusetts city law requiring inhabitants to take a vaccine amid a smallpox outbreak. The plaintiff, Jacobson, refused to take the vaccine, citing health reasons, and was subsequently fined $5. The Massachusetts Supreme Judicial Court affirmed the conviction, as did the United States Supreme Court. In so doing, the Court found that in certain circumstances, the rights of individuals not to take the vaccine are subordinate to the collective health and welfare of a community. Put simply, the Court found that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

If the Jacobson case is any indicator, the New Mexico court may be the first of the COVID-19 pandemic to conclude that compulsory vaccination laws for government employees do not violate the Constitution.

What does this mean for our clients?

The New Mexico case does not directly affect our clients, most of whom are private employers and generally not subject to the constitutional mandate of the 14th Amendment. However, the outcome of this significant constitutional issue of first impression may set the tone for the private sector in the coming months with regard to whether employers may require employees to take a vaccine as a condition of employment. We also anticipate that more courts will provide more definitive and “stronger” laws than the current EEOC guidance which, while persuasive, is not binding law.

What happens next?

The case will make its way through the court and, depending upon the outcome, may make its way through appeals, perhaps up to the United States Supreme Court. Likely, there will be similar lawsuits filed involving mandatory vaccination policies of private employers and those in the healthcare field. For now, we recommend you “stay tuned” for further updates.

Our guidance to our clients remains unchanged and individualized to each client’s unique situation.

How Frier Levitt Can Help?

Frier Levitt’s skilled employment attorneys are closely monitoring legal developments and changes and are available to help employers work out the complexities and navigate these difficult times. Since there is no “one size fits all” solution for every business, employers should consult a skilled employment attorney to ensure their employment policies and practices are compliant with the current law. Contact us today to speak to an attorney.

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