A recently filed federal case may provide guidance on whether or not an employee can be terminated for refusing to take a COVID-19 vaccination because it was approved only for emergency use authorization (“EUA”) by the FDA. The New Mexico court’s decision may provide guidance for future decisions.  

The case, Legaretta v. Macias, No. 21-CV-179 MV/GBW, 2021 WL 833390, involves Detention Officer Isaac Legarreta. While at work, he was written-up and threatened with termination if he failed to comply with a memo mandating that employees get vaccinated. The memo in question made it clear that, “being vaccinated is a requirement and a condition of ongoing employment with the County due to the significant health and safety risks posed by contracting or spreading COVID-19”

As a general rule, it is lawful for employers to mandate employees receive vaccines as a condition of employment. However, this rule is subject to two very important exceptions. Under Title VII of the Civil Rights Act of 1964, employers are required to provide “reasonable accommodations” to employees whose sincerely held religious beliefs prevent them from getting a vaccine. Likewise, the Americans with Disabilities Act (ADA) requires employers to provide “reasonable accommodations” to employees who have an underlying disability that prevents them from being vaccinated.

However, the way in which COVID-19 vaccines were approved by the FDA creates new questions for this general rule. Specifically, the three currently approved COVID-19 vaccines were not approved through the traditional FDA approval process. All were authorized by the FDA through an emergency use authorization (EUA). Here, it is important to note that when the FDA authorizes a drug through an EUA, federal law requires that the drug must be accompanied by information on the right of individuals to refuse the drug and the consequences of such refusal. Currently, there is no law specifying that an employer is required to provide a reasonable accommodation when an employees is refusing to take a vaccine based on EUA. However, the Legaretta  case will likely answer two key questions: 1) if an employer is required to provide notice that an employee will be terminated for refusing to take an EUA vaccine; and 2) if that subsequent termination is in violation of public policy.

Mastagni Holstedt will be monitoring this important New Mexico case in order to keep our California clients informed.