BY MAIRE O’NEILL
maire@losalamosreporter.com
First Judicial District Judge Jason Lidyard on Friday morning denied a request for preliminary injunction to prevent Los Alamos National Laboratory from enforcing their policy which requires all employees to be vaccinated by close of business today, Oct. 15.
The motion for preliminary injunction had been filed by the plaintiffs in a case filed in late September by a group of more than 100 LANL employees against LANL Director Thom Mason, LANL Medical Director Sara Pasqualoni, MD, and Triad National Security LLC regarding LANL’s policies with respect to COVID-19 vaccination, testing and wearing masks.
The employees as plaintiffs in the case are represented by attorneys Jonathan Diener and Vanessa L. DeNiro of the Truth & Justice Law Firm and the complaint is for “violation of the right to refuse unwanted and medically unnecessary care, discrimination, retaliatory discharge, medical negligence, negligence and injunctive relief”. Attorneys Sara Sanchez and Michael Weil appeared on behalf of Mason, Pasqualoni and Triad.
See previous story: https://losalamosreporter.com/2021/09/30/lawsuit-on-covid-19-protocol-filed-by-dozens-of-employees-against-los-alamos-national-laboratory/
Judge Lidyard noted Friday that a preliminary injunction requires that a plaintiff must show that they will suffer irreparable injury unless the injunction is granted, that the threatened injury outweighs any damage the injunction might cause the defendant, that the issuance of the injunction will not be adverse to the public’s interest, and that there is a substantial likelihood plaintiff will prevail on the merits.
He said assuming without deciding, that the plaintiffs would prevail on the arbitration, state actor and class status issues, there is not a substantial likelihood plaintiffs will prevail on the merits of their claims.
“It is not that their circumstances are not compelling but that the law is simply not on their side. As to the constitutional claims, the Courts have held for over a century that mandatory vaccination laws are a valid exercise of state police power and such laws have withstood constitutional challenges,” Judge Lidyard said.
He noted a 1990 U.S. Supreme Court case in Oregon that classifies compulsory vaccination laws as among the neutral, generally applicable laws that do not require religious exemptions under the First Amendment. In another U.S. Supreme Court case in Massachusetts case, Lidyard said the Court notes that the right to practice one’s religion freely does not include liberty to expose the community to communicable disease. In a 1922 case, the U.S. Supreme Court held that there was no equal protection violation where children were prohibited from attending school without vaccinations and explained that “in the exercise of the police power, reasonable classification may be freely applied and that a regulation is not violative of the equal protection laws because it is not all-embracing”.
“In 1905, Jacobson vs Commonwealth of Mass., Supreme Court held that mandatory vaccination laws do not offend any right given or secure by the Constitution and that a state’s police powers allow a position of restraints to which every person is necessarily subject for the common good,” Judge Lidyard said.
He noted that the case at hand deals with an assumed state actor employer’s policy requiring employees to be vaccinated in order to maintain their employment.
“Because the loss of employment, no matter how prestigious it is, is not an irreparable harm, the plaintiffs assert that the right being violated here is their right to refuse unwanted medical treatment based upon the free exercise of religion and the risk due to their disability or medical condition. However, this is a neutral policy of general applicability,” Judge Lidyard said.
He cited a U.S. Supreme Court case that provided that the Constitution permits general regulations that incidentally burden religious practices, that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes or prescribes conduct that his or her religion prescribes or proscribes”.
Judge Lidyard said in the case at hand, the vaccine is a neutral rule of general applicability, that It applies to all employees whether religious or not.
“It doesn’t discriminate among religions. Indeed the employer has chosen to enable the practice of religion by providing a religious exemption to this vaccination requirement – maybe not the exemption desired by the plaintiffs – but an exemption nonetheless,” he said. “Furthermore, no one is sticking a needle into anyone’s arm as a result of the defendant’s policy. All that is being said is that if you don’t get vaccinated you must find work somewhere else.”
Judge Lidyard said that in response to that proposition, the plaintiffs claim the doctrine of unconstitutional conditions vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up and furthermore that the Supreme Court has recognized that regardless of whether or not the government ultimately succeeds in pressuring someone into forfeiting a constitutional right, the unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them.
“Applying these principles to similar situations as are present here, that is employees confronted with a choice between a vaccine and their job, the U.S. District Courts have consistently found in the favor of employers,” he said.
He cited the case of Bridges vs Houston Methodist Hospital in the U.S. District Court District of Texas, where on April 1, the hospital announced a policy requiring employees to be vaccinated against COVID-19 by June 7.
“Miss Bridges and 116 other employees sued to block the injection requirement and their terminations. Speaking on the issue of whether or not that requirement was coercive, the Court stated, ‘Although the claims fail as a matter of law it is also necessary to clarify that the employees have not been coerced. The employees say that they are being forced to be injected with a vaccine or be fired. This is not coercion. Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients and their families safer. The employees can freely choose to accept or refuse a COVID-19 vaccine, however if they refuse, they will simply need to work somewhere else. If a worker refuses an assignment, a changed office, earlier start time or other directive, he or she may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his or her remuneration. That is all part of the bargain’.”
Judge Lidyard also spoke of Beckridge vs St. Elizabeth Medical Center in U.S. District Court in Kentucky where the Court stated that the central issue was about conditions of employment and whether a private employer can modify its employment conditions to require employees to be vaccinated in response to an unprecedented global pandemic.
“This Court went on to say, ‘Here no plaintiff is being imprisoned and vaccinated against his or her will, rather these plaintiffs are choosing whether to comply with a condition of employment or to deal with the potential consequences of that choice. Even if they believe the condition or the consequences are wrong, the law affords them an avenue of recourse and that avenue is not injunctive relief on this record’,” Judge Lidyard said.
He also quoted from an Indiana case involving students being permitted to attend school at a university where the U.S. District Court stated, “The University is presenting the students with a difficult choice – get the vaccine or else apply for an exemption or deferral, transfer to a different school, or forego school for the semester or altogether, but this hard choice does not amount to coercion. The students taking the vaccine are choosing it among other options and before the shot reaches their arms, they are made aware of the risks and the option to refuse”.
Based on these decisions, Judge Lidyard said he does not find that the unconstitutional conditions doctrine applies in the current case based on the facts and the record presented to the Court. He said other courts have consistently held that vaccine mandates do not implicate a fundamental right and that rational basis for view therefore applies in determining the constitutionality of such mandates. He mentioned the New Mexico case Valdez vs Grisham, where the U.S. District Court held that the governmental purpose of stemming the spread of COVID-19, especially in the wake of the Delta Variant is not only legitimate but is unquestionably compelling interest.
“What has been asserted by the plaintiffs is that their experts in the affidavit that was provided give compelling evidence of a scientific nature to establish that vaccination is not the proper means by which to address the pandemic. However, historically the vaccinations have been employed as a means of stemming the spread of communicable diseases and as was held in Jacobson vs the Commonwealth of Massachusetts, and was stated in Valdez vs Grisham, disputes over the most reliable science are of no moment to the instant analysis,” Judge Lidyard said. “In Jacobson, the Court noted that it could take judicial notice of the fact that it is the common belief of the people of the state that a compulsory vaccination requirement would be a reasonable, proper way of addressing the spread of disease. The Court believes in this instant, it can also take judicial notice of the information that has been disseminated to all citizens of the United States regarding the effectiveness of vaccinations in stemming the spread of the COVID-19 virus. That the defendants in this case chose to utilize it as the means by which they would address the spread in their place of business, it is not for the Court to determine if it is the best tool by which to accomplish that task, but merely if it is rationally based.”
Judge Lidyard found in accordance with the precedence he had cited that “this certainly is the case and furthermore that this is an easier than Jacobson case, in that in this case there are exemptions, which although according to the plaintiffs, should be different, that is not what the Constitution requires”.
Regarding the non-constitutional claims, he said the plaintiffs also failed to establish a substantial likelihood of success on the merits.
“Adopting many of the principles just cited in my addressing of the constitutional claims which are equally applicable here, the Court notes that under the New Mexico Human Rights Act, employers must provide accommodations unless they are an unreasonable or undue hardship,” Judge Lidyard said, adding that as was held in a Rhode Island case, the accommodation offered by the employer does not have to be the best accommodation possible and the employer does not have to demonstrate that alternative accommodations would be worse or impose an undue hardship.
“These issues of reasonableness and undue hardships still need to be flushed out in discovery and a trial of the merits will be necessary for their determination, but as the record stands today, the Court cannot say there is a substantial likelihood that the plaintiff will prevail,” he said.
He noted with respect to the requirement of irreparable injury, that as was stated in a Kentucky case involving St. Elizabeth Medical Center in Kentucky, loss of employment is not irreparable because it is fully compensable by monetary damages.
“Loss of employment is not considered to be an irreparable harm. In fact wrongful termination claims exist for that very reason, whether brought under the Americans with Disabilities Act, Title VII or some other state or federal law, a wrongfully terminated plaintiff can receive monetary damages to compensate their loss of employment,” Judge Lidyard said noting that in the Valdez vs Grisham, the Court held that “permanent loss of employment standing alone, does not equate to irreparable harm”.
“Therefore plaintiffs have failed to establish any loss that is not compensable by monetary damages,” he said.
Regarding the balancing of the equities or the harms, Judge Lidyard said that as the plaintiffs are unlikely to succeed on the merits of their constitutional claims, accordingly the threatened harm to the plaintiffs that they seek to prevent does not reach a constitutional magnitude.
“The Court finds that the balancing of the equities tips in the defendants’ favor given the strong public interest here of promoting and preventing further spread of the COVID 19 virus that has infected and taken the lives of thousands of New Mexico residents. The plaintiffs request here would weaken the efforts of the defendants to carry out these goals in their workplace. Given the public health efforts by this policy for their office space, enjoining the continuation of the same is not in the public interest,” he said.
In closing, he referred back to the St, Elizabeth Medical Center case where the U.S. District Court held, “ “If an employee believes his or her individual liberties are more important than legally permissible condition on his or her employment, that employee can and should choose to exercise another individual liberty no less significant – the right to seek other employment”.
“For these reasons, the plaintiffs have not met the burden for a preliminary injunction and therefore the request is denied,” Judge Lidyard said.