Thread by @drbairdonline

Did employee lawsuit get Los Angeles Unified School District #LAUSD to back down from (i.e., delay) imposing employee COVID-19 vaccine mandate? Why aren’t more employees suing employers over these mandates? What happens if (i.e., when) vaccines get full FDA approval?
Thread
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Despite a setback in Bridges v Houston Methodist, lawsuits still seem to be a viable avenue of recourse for at-will employees who don’t want to comply w/employer COVID-19 vaccine mandates but also don’t want to lose their jobs.
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https://twitter.com/drbairdonline/status/1404825474467958786

In a recent Twitter thread I showed that although 4 states (MT, AR, UT, OR) have provided some protection for employees agst employer COVID-19 vaccine mandates, there is great resistance from both Demo & Repub state leaders to ban such employer mandates
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https://twitter.com/drbairdonline/status/1407775687063179266

I also argued that - altho Judge Hughes ruling applied only to TX, private employers & at-will employees - the odds of judicial relief for employees agst employer mandates appear remote w/law stacked in favor of employers & every state pushing vaccines
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https://twitter.com/drbairdonline/status/1407449080738062338

Yet despite reports of increasing numbers of public & private colleges/universities & hospital systems imposing employee COVID-19 vaccine mandates, there is still hope for employees who don't want to take the vaccines & don't want to quit or be fired.
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beckershospitalreview.com/workforce/hosp…

Fact is that the vast majority of employers are still quite reluctant to mandate COVID-19 vaccines under Emergency Use Authorization out of fear of ugly lawsuits & public backlash. And who knows what would happen w/different state, court, judge, jury?
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https://twitter.com/drbairdonline/status/1407395244618838019

However, w/rpts of growing numbers of employer vaccine mandates, it's surprising that there is so little in the media about employee lawsuits agst these mandates. Besides Houston Methodist lawsuit, only three others in CA, NC & NM have gotten attention.
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https://twitter.com/drbairdonline/status/1407449086941274112

While Houston Methodist is private employer, other three lawsuits involve public employees CA (educators), NC (deputy sheriff) & NM (detention officers) but all four lawsuits similarly grounded in objections to EUA status of COVID-19 vaccines
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jdsupra.com/legalnews/firs…

In the Houston Methodist suit, plaintiff’s attorney Jared Woodfill filed an appeal to the US Fifth Circuit Court of Appeals on June 14 and the nurses have vowed to take the fight all the way to the Supreme Court if necessary
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thetexan.news/houston-nurses…

In NC federal lawsuit, on June 30 the Durham County Sheriff's Office announced that the suit over the COVID-19 vaccine requirement had been dismissed at former Deputy Christopher Neve's request but had no further comment.
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wxii12.com/article/north-…

The Legaretta/Zoccoli lawsuit in NM has not been heard in court yet but Doña Ana County is seeking dismissal citing Judge Hughes’ dismissal of the similar Houston Methodist lawsuit in its most recent filing.
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abqjournal.com/2403364/court-…

The origins of the California lawsuit go back to Jan 29 Q&A session, LAUSD reps informed Teamsters Local 572 rep “All District employees will be required to be vaccinated. No exceptions have been made. . . .”
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At Feb 17 meeting of Harbor Area United Teachers Los Angeles (one of 8 UTLA geographic areas) wrote & passed motion "opposing LAUSD's intent to make the vaccine a condition of employment & respect individual UTLA member choice in regards to receiving any COVID-19 vaccine"
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UTLA leaders refused to allow discussion of motion ("Their message is: lineup and take it like a slave and don't ask questions."), these Harbor Area UTLA members organized a group "California Educators for Medical Freedom"
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educatorsformedicalfreedom.com

LAUSD "mandate" made even more clear in March 4 memo from Linda Del Cueto, LAUSD Chief Human Resources Officer to local district superintendents w/"Vaccination Guidance for Employees" clearly indicating vax mandatory ("You will provide proof")
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secureservercdn.net/72.167.242.48/…

Defendant Del Cueto also made verbal statement in presence of Plaintiff Quintero to effect that vaccine is mandatory & any refusal by an employee to get vaccinated will trigger disciplinary action
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March 17 California Educators for Medical Freedom (CEFM) & other LAUSD teachers & staff members filed lawsuit in US District Court in Los Angeles against LAUSD with - different from the other mandate lawsuits - “demand for a jury trial”
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secureservercdn.net/72.167.242.48/…

Apr 15 CEFM filed "Motion for Preliminary Injunction re Enforcing a mandatory policy of vaccination agst COVID-19, so long as the vaccines being so administered under such a policy remain experimental" w/hearing set for May 17 but withdrawn on May 12
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dockets.justia.com/docket/califor…

May 3 LAUSD filed motion to dismiss the case w/hearing set for June 7
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dockets.justia.com/docket/califor…

May 8 San Diego Union-Tribune reported, according to California School Boards Association spokesman Troy Flint, "K-12 schools or districts, on their own, cannot require the COVID vaccines while the vaccines only have EUA"
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sandiegouniontribune.com/news/education…

The Union-Tribune article added "Similarly school districts have not required the COVID vaccine for their staff." But it is unclear whether Troy Flint said this and what he (or the reporter) might have meant by "similarly"? K-12 districts can't mandate EUA vaccine for staff?
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May 28 report at EIN Presswire that “LAUSD Superintendent Beutner & HR Head Del Cueto Back Down After Employees Sue Over Their Illegal COVID-19 Vaccine Mandate" (see 1st tweet) but only source is San Diego Union-Tribune article that says NO SUCH THING
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einpresswire.com/article_print/…

But June 20 ABC News reported LAUSD in statement said "LAUSD has not mandated COVID-19 vaccinations for employees. Instead, we are providing access to the vaccine for all who work in schools & encouraging them to get vaccinated. The choice is theirs."
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abcnews.go.com/Business/covid…

John W. Howard, the CEMF lawyer, told ABC News that he has offered to settle the case if LAUSD will just state on court record that they will not require vaccination unless the vaccines are approved by FDA & removed from EUA status. Howard said "They [LAUSD] have refused.”
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I'm not certain where the lawsuit stands at this point but there is no news in the media or CEMF website it was settled. There is also nothing on LAUSD website on vaccine mandate altho "Vaccination Site Employees Only" is only accessible by employees.
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achieve.lausd.net/covidvaccine

So did LAUSD indeed back off the COVID-19 vaccine mandate due to the employee lawsuit? It sure appears so b/c as late as March LAUSD was pushing hard for a mandate but on June 20 they admitted to ABC that there was no mandate
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But the fact that LAUSD is refusing to state on court record that will only require vaccines with full FDA approval suggests that LAUSD still wants to maintain the principle that they have the authority to mandate an EUA vaccine if they decide to.
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So it seems that the lawsuit is in a holding pattern with neither side concerned to press the issue of whether it is legal for a California school district to mandate EUA vaccine as long as LAUSD doesn't mandate EUA vaccine & LAUSD perhaps concerned might lose in jury trial
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If the CEMF lawsuit did indeed get LAUSD to back off on its EUA Covid-19 vaccine mandate, a similar legal strategy would seemingly be good strategy for employees in other K-12 school districts - and possibly colleges & universities - to fight the same kind of employer mandate
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A recent advisory from the General Counsel for California Community Colleges cited CEMF lawsuit as the kind of litigation that colleges & universities could avoid by waiting until vaccines received full FDA approval before imposing a vaccine mandate.
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cccco.edu/-/media/CCCCO-…

The threat of litigation may have been one of the reasons San Joaquin Delta College (Stockton, CA) withdrew its EUA Covid-19 vaccine mandate on July 6, only NINE days after voting for the mandate requiring all employees, students & visitors be vaxxed
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thecollegefix.com/community-coll…

But of the over 500 colleges & universities that have enacted EUA Covid-19 vaccine mandates that typically apply to students & employees equally, I have not seen any reports of any employee lawsuit (although there are some student lawsuits)
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bestcolleges.com/blog/list-of-c…

Analysis of location of EUA Covid-19 vaccine mandate schools shows 10 states w/no mandate schools all voted Repub in 2020 pres election. The 17 states & DC w/both private & public schools (except Indiana) voted Dem. The states w/only private schools split 13 Repub & 10 Dem.
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Divisions in location of EUA Covid-19 vaccine mandate schools are apparently NOT due to well publicized state bans (either by legislation or executive order) on Covid-19 vaccine passports. (These bans do not explicitly mention EUA status of vaccines.)
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usnews.com/news/best-stat…

In 15 of 23 states where only private schools have EUA mandates, there is NO passport ban & in 4 of the states (FL, IA, SC, TX) the ban supposedly applies to both public & private businesses.
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Four of the 10 states (AL, AK, KS, MS) with NO EUA mandates schools have NO passport ban while in three states (AR, ID, WY) the ban only applies to public agencies. Only three (MT, ND, SD) have public & private ban & in ND the ban actually exempts colleges.
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These passport bans further do NOT ban public or private employer EUA vaccine mandates as condition of employment as is clear from failed efforts in 20 states to pass laws banning employer mandates. (Only passed in UT & AR for public employers & MT for both public & private.)
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It seems unlikely that a school would mandate an EUA vaccine for students w/o also mandating one for employees, but #MSM legal opinion states ALL public & private schools (exc in AR, UT & MT) have authority to issue such mandates for at-will employees albeit w/legal risks
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Perhaps concerned about CEMF-like lawsuits, a few public schools (CUNY, SUNY, U Vermont) have made Covid-19 vaccine mandates contingent on full FDA approval. Some states divided like CSU System (full FDA) vs UC System (EUA) in California & Colorado, W&M (full FDA) in VA.
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To avoid the kind of decision like that Judge Hughes handed down in Bridges v Houston Methodist, I would think a CEMF-like employee lawsuit would have the greatest chance of success against a PUBLIC institution of higher learning with a JURY TRIAL
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https://twitter.com/drbairdonline/status/1404825474467958786

Whether an employee lawsuit would fare better in a red or blue state is unclear but I have argued elsewhere that employees would have a stronger legal ground in one of the 17 states with a “public good” exception to the at-will employment doctrine
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https://twitter.com/drbairdonline/status/1407412312856678404

Of course, as already discussed re CEMF v LAUSD, the point of the employee lawsuit is not necessarily to reach some final verdict but simply to get the employer to back off on the EUA vaccine mandate
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