Texas ruling allowing mandatory vaccines casts shadow over NM suit brought by former COs

Two now former Doña Ana County detention officers filed suit in February after the county required COVID-19 vaccination as a condition of employment

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By Algernon D'Ammassa
Las Cruces Sun-News
LAS CRUCES, N.M. — A lawsuit brought by two former county detention center officers and other unnamed plaintiffs remains pending, but a recent federal court ruling in Texas casts a shadow over one of their central arguments.

Isaac Legaretta and Anthony Zoccoli, plus unnamed plaintiffs, are suing Doña Ana County over its January mandate that first-responders and certain other employees receive a COVID-19 vaccination as a condition of employment.

Both men are former officers at the detention center who declined to take the vaccine despite orders from County Manager Fernando Macias. Legaretta later resigned, and Zoccoli was discharged, but the county has said the latter was for reasons unrelated to vaccinations.

Vaccine shots are prepared at a vaccination event at the Las Cruces Convention Center in Las Cruces on Wednesday, June 16, 2021.
Vaccine shots are prepared at a vaccination event at the Las Cruces Convention Center in Las Cruces on Wednesday, June 16, 2021. (Nathan J Fish/Sun-News)

Other than those two men, the county maintains that all personnel in the departments initially required to be vaccinated have received either their shots or an accommodation. In May, Macias told employees that 90 percent of the county's total workforce had been vaccinated and that new employees would be required to receive the shots.

In May, the Equal Employment Opportunity Commission issued guidance that employers may require employees to be vaccinated provided they grant reasonable accommodations for disabilities or sincere religious beliefs.

Texas judge dismisses similar arguments

At the center of the former employees' complaint is the fact that all three vaccines used in the United States to protect against the SARS-CoV-2 coronavirus and its variants are still undergoing the clinical trial process, and are currently authorized only for emergency use by the U.S. Food and Drug Administration.

The complaint argues that the federal Food, Drug and Cosmetic Act requires disclosures to individuals about medical products, including vaccines, that are not fully approved, including "the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks."

Additionally, the complaint cites guidance last summer from the U.S. Centers for Disease Control and Prevention that "under an Emergency Use Authorization — an EUA — vaccines are not allowed to be mandatory."

While the case has not been heard in court, a similar lawsuit in Texas was dismissed earlier this month by U.S. District Judge Lynn Hughes, who rejected claims similar to those made in the Las Cruces case about the Act.

It was the first federal ruling on vaccine mandates and might foreshadow trouble for the Doña Ana County plaintiffs.

The Houston Methodist hospital system ordered its workforce of 25,000 to be vaccinated against COVID-19 by June 7. Over 170 workers who did not do so were put on unpaid suspension and warned they would be fired if they did not get vaccinated.

Nurse Jennifer Bridges and 116 other employees challenged the mandate in court on a number of grounds, claiming the vaccines are "experimental" and that employees were being forced to participate in a human trial, an argument Hughes rejected along with a claim that firing employees who refuse would be wrongful termination under Texas law.

The judge also said the plaintiffs "misconstrued" the federal law cited by Legaretta and Zoccoli.

The Food, Drug and Cosmetic Act, Hughes wrote, "confers certain powers and responsibilities to the Secretary of Health and Human Services in an emergency. It neither expands nor restricts the responsibilities of private employers … "

Hughes concluded that a hospital network asking employees to receive a COVID-19 vaccination or lose their job "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. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else."

WWII comparison 'reprehensible'

Another similarity between the two lawsuits is their claim that requiring the vaccinations violates the Nuremberg Code of 1947, a set of ethical principles governing medical experiments that emerged from the post-World War II Nuremberg trials, which tried officials from Germany's Nazi regime for war crimes.

The Doña Ana County employees' lawsuit also cites the Nuremberg Code, claiming the county manager and supervisors "violated basic principles of free will, choice, bodily integrity, and human dignity" and thus constitute "crimes against humanity."

In court filings the county responded, "It is misguided and potentially offensive to liken a vaccine policy designed to protect vulnerable populations to human experimentation prohibited by international law and treaty."

Hughes rejected a similar argument in the Houston Methodist lawsuit with scorn, writing: "Equating the injection requirement to medical experimentation in concentration camps is reprehensible."

Doña Ana County is seeking dismissal of the Legaretta/Zoccoli lawsuit, and cited Hughes' dismissal of the Houston lawsuit in its most recent filing.

While Houston Methodist Hospital is a private employer and the county is a government entity, Goodin wrote to the Sun-News: "In my opinion, there should be no difference in the application."

The plaintiffs' attorney, Nancy Ana Garner, did not respond to queries for this report.

Garner also represents a group called New Mexico Stands Up, which opposes COVID-19 public health emergency directives, claiming the dangers of the disease have been exaggerated and questioning the safety of vaccines developed for widespread immunity to COVID-19 disease.
(c)2021 the Las Cruces Sun-News (Las Cruces, N.M.)

McClatchy-Tribune News Service

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