The vaccination protocol in county facilities continues to be sporadic, but there are some good news. First, on March 1, 2021, at the ACIP COVID-19 Emergency Meeting, Dr. Kathleen Dooling (CDC) stated: “Transmission in Congregate Settings, such as prisons, homeless shelters, or long-term care facilities or other, continues to be a challenge. Jurisdictions may consider offering vaccines to all unvaccinated staff and residents at the same time without waiting for eligibility of each constituent group.” Look at the 12:10-12:29 minute mark:

Dr. Dooling’s comment updated ACIP’s previous recommendations to include immediate vaccinations of incarcerated persons regardless of the constituent group.

Then, on March 11, 2021, the California Department of Public Health updated its Vaccine Prioritization Guidelines, mirroring ACIP’s updated recommendation to include all those housed in a high-risk congregate residential setting, such as an incarceration/detention facility.

On March 15, Orange County jails were granted authority from our Local Vaccination Task Force to inoculate their entire population. They also made this fantastic video, which includes testimonies that I was so happy to receive from Ken Hartman, Rasheed Lockheart, and Arnold Treviño a few weeks ago, in order to encourage jail residents to accept the vaccine:

I want to especially draw your attention to what Joe Balicki, the Assistant Sheriff, says at the end, which I think is crucially important. While the decision whether to get vaccinated or not has nothing to do with one’s release (nor should it; public health and deservedness should not mix), it does impact the jail authorities’ ability to reintroduce programming and, hopefully, visitation, which makes everyone’s life inside better, regardless of their date of release. This strikes me as an eminently sensible reason to get vaxxed in any correctional facility, and underscores a point we make in our forthcoming book Fester: vaccination is a group effort, not a solitary zero-sum game.

Which brings me to my next point: My amazing colleague Dorit Reiss, who has been fighting the good fight on vaccines for years, has a fascinating new blog post over at the Skeptical Raptor Blog regarding a lawsuit brought by a correctional officer in New Mexico, which she thinks is meritless and will likely not succeed:

The main argument of the plaintiff, through his lawyers, is that it is illegal to require a EUA vaccine. To bolster that, the plaintiff also argues that a COVID-19 vaccine mandate is preempted by the federal EUA. In addition, the plaintiff, through his lawyers, also alleges that the requirement is in violation of his constitutional right to life, liberty, and privacy. This case is different than most challenges to workplace mandates in that the employer is a public employer, the county, which is also limited by the Constitution. 

The first point to remember is that if we go back to the law authorizing the EUA, it does not speak to state or local authorities at all, nor does it speak to employers. The law tells the Secretary of Health to provide information to recipients. But as the CDC points out, traditionally it’s not the federal government who mandated vaccines.

Basically, the plaintiff – and other supporters of the view that the EUA provision prohibits mandates – are asking a court to determine that a provision directed at the Secretary of Health and Human Services overturns an existing legal framework that allows states and localities to impose rules in the public health – and allows employers to set workplace health and safety conditions – by implication, without addressing them directly at all.

Maybe, but that is an extremely big legal change to make by implication. Employers have a decent argument that this provision is not directed at them, and does not change existing state and local law by implication alone.

Further, the provision itself is ambiguous. It mentions the consequences of declining a product, suggesting that there could be such consequences. Especially outside the Secretary’s orbit. 

Plaintiff also mentions that the employers did not inform him of the risks or benefits of vaccines, but the statute is fairly clear that such information needs to be given by those administering the vaccine. It is not directed at employers per se, and the plaintiff was not getting the vaccine from his employers directly.

What about the quotes from the FDA and from Dr. Cohn? Could the employee not rely on them? Well, not really.

First, the FDA issued a guidance document. Under our Supreme Court jurisprudence, while the law is not as clear as it could be in this area, agency guidance does not always get a very high level of judicial deference; Dr. Cohn’s comment would likely get even less deference: it was an oral comment by an official that, although entrusted with substantial responsibilities (and, because of her capability, intelligence, and integrity, deserving of much personal respect) is not a legal expert, and not in charge of applying the EUA law (the latter is relevant to assessing the level of deference).

Further, the language quoted from the FDA – the preemption clause – does not directly address mandates. It is part of the “Preemption” section of the guidance document, and that section, the document explains, anticipates conflicts of state law if “if states have existing requirements governing the shipment, holding, dispensing, administration, or labeling of unapproved medical products or approved medical products for unapproved uses.”

That’s not about the mandate. This clause is not a good source for arguing that the FDA is prohibiting mandates. In fact, the word mandate does not appear in the FDA guidance. The closest reference in the document is that the document quotes that “the statute requires that FDA ensure that recipients are informed to the extent practicable given the circumstances… that they have the option to accept or refuse the EUA product and of any consequences of refusing..”[the vaccine].

The only operational conclusion from that is the FDA’s recommendation to include this language in the EUA fact sheet that manufacturers prepare for recipients. Again, this is directed at recipients – and manufacturers – not employers.

In other words, while the plaintiff has a colorable argument that the EUA law prohibits mandates, the county likely has a much stronger argument that there is no such prohibition. 

The complaint also seems to me to understate the data behind the vaccines, which draw on clinical trials as large or larger than those used to license vaccines, trials consisting of tens of thousands of people, which found the vaccines very effective and very safe. Experience since, with the vaccines given to tens of millions of people, and supported, for example, by a study with over a million from Israel, supports that.

At this point, EUA COVID-19 vaccines have strong evidence to support their safety and effectiveness.

The plaintiff’s lawyers even tried to coopt the famous case of Jacobson v. Massachusetts,   which upheld a vaccine mandate, by pointing out that it acknowledged that there are limits on the government’s power to limit individual rights for public health. That is true, but Jacobson also approached such limits with some deference to the authorities. 

At any rate, a COVID-19 vaccine mandate like this would easily survive the reasonableness requirement embedded in Jacobson. The county is requiring public servants working in certain positions to get a vaccine with extensive safety and effectiveness data behind them.

Plaintiff is a corrections officer, literally working with a captive population in a congregate setting. Plaintiff is not being held down or forcibly vaccinated and does not face criminal charges if he does not vaccinate.

He is told that if he wants to work with a vulnerable population, he needs to get a vaccine. This is an imminently reasonable requirement, in these circumstances. At least arguably, when the state detains people the state owes them to take basic safety precautions and requiring that the correction officers be vaccinated seems a natural step in the right direction – especially since jails have been part of the relatively high rate of Covid-19 seen among incarcerated persons.

I will add that when the government is acting as an employer, those working for it will inevitably be subject to workplace rules. By taking the employment, the employee is accepting some limits on conduct. While constitutional rights do not disappear, there are limits to their application in their employment context – even freedom of speech can be limited in the workplace when the speech is not about a matter of public concern.

Finally, I’m eagerly looking forward to this coming Wednesday, when I get my second shot of the Pfizer vaccine, and to Friday, when I will hold my first in-person office hours in a year! Here’s hoping that you get yours, too, soon.

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