Oregon Federal Court Joins Other Jurisdictions in Denying Challenge to Government-Issued Vaccine Mandate | Littler

On October 18, 2021, an Oregon federal district court issued a 55-page statement denying a request for a restraining order (TRO) to prevent recent Oregon Health Authority (OHA) orders from affecting education and health workers, as well as certain state executives to receive the COVID-19 vaccine (“Vaccine Orders”) as soon as it comes into force. The 42 plaintiffs included health care providers, health workers, teachers, school staff and volunteers, and an employee of a government agency. Plaintiffs alleged that a TRO was necessary to block vaccination regulations as they violate both international and constitutional law. The decision is a first look at how federal district courts analyze such challenges.

History of Oregon Vaccine Regulations

In 2020, several pharmaceutical companies, including Pfizer-BioNTech, began developing vaccines and conducting clinical trials to fight the COVID-19 virus. In December 2020, Pfizer-BioNTech received its first Emergency Use Authorization (EUA) from the FDA for a two-dose Covid-19 vaccine that was tested on approximately 44,000 people. Less than two weeks later, the European Medicines Agency approved the use of Pfizer-BioNTech’s vaccine under the brand name COMIRNATY. It is important that the vaccines approved by the FDA and the European Union are physically, biologically and chemically identical, even though they are sold under different names in different locations. Over the next few months, the FDA reissued the EEA for the Pfizer BioNTech vaccine.

In August 2021, Oregon Governor Kate Brown issued Executive Order 21-29 in response to the summer spate of COVID-19 infections and hospitalizations that resulted from the highly contagious Delta variant. In issuing the order, Governor Brown stated that COVID-19 “threatens the ability of the state health system to treat not only COVID-19 patients, but also those in need of specialized medical care following car accidents, heart attacks and other medical emergencies.” and that “employers’ vaccination regulations have become an important tool in managing the surge”. The implementing regulation required that employees of the state executive must be “fully vaccinated” by October 18, 2021. The OHA then issued two additional orders that required full vaccination of all teachers, school staff, school volunteer volunteers, health care providers and health workers by October 18, 2021.

Plaintiffs’ claims and court order

In response to the vaccine ordinances, the plaintiffs filed for a TRO, arguing that the mandates illegally force them to take “experimental” drugs in violation of ius cogens, a technical term for common norms that bind the international community and cannot be taken away would, or contractually anticipated. The term was recognized in the Nuremberg Code of the post-war period and prohibits medical experiments on people without voluntary consent.

The court rejected this argument. First, the court pointed out that the vaccines required by the Vaccination Ordinance were not experimental. The Pfizer-BioNTech and COMIRNATY branded vaccines are essentially identical, and months of testing and clinical studies went into their development. The FDA approved its emergency use in December 2020.

Second, the court found that even when the two vaccines were materially different, the plaintiffs offered no support for the argument that “vaccine mandates, particularly during a global pandemic, for an FDA-approved vaccine, the extensive clinical trials and has undergone safety assessments “by the FDA [could be] viewed as a forced or forced medical ‘experiment’ code).

Finally, the court noted that plaintiffs are still free to obtain the vaccine or, in the absence of medical or religious accommodation, find employment elsewhere. In other words, the plaintiffs are not required to get vaccinated.

The court next examined the plaintiffs’ constitutional arguments against the vaccine regulations, namely that the vaccine regulations violated due process rights, the privilege or immunity clause, and the priority clause. The court thoroughly analyzed the US Supreme Court’s 1907 ruling in the Jacobsen v. Massachusetts case, in which the court rejected the argument that the Massachusetts smallpox vaccination mandate was an unlawful exercise of police force. Citing Jacobsen and other recent cases, the court highlighted numerous public health laws that the general population rely on to ensure the safety and wellbeing of individuals while respecting personal autonomy. And the court rejected the argument that any federal law prohibited the state of Oregon from imposing these requirements.

Plaintiffs made several other points that the court had little faith in. For example, plaintiffs argued that COVID-19 vaccines did more harm than good and relied on the Vaccine Adverse Events Reporting System (VAERS), which allows healthcare providers and individuals to report adverse events following various vaccine administrations. While 2021 saw an increase in such adverse events, the court found that the database did not address causal versus temporal relationships, nor did it take into account that millions of individual vaccines were administered in 2021 to analyze the safety of COVID-19 vaccines or to decide whether the vaccine regulations were the best policy, but to see if the vaccine regulations were so arbitrary that they were not “rationally linked to government interests and therefore shock”[] the conscience.”

Next, the court found that the plaintiffs failed to show that they were likely to suffer irreparable damage that was imminent. The job loss was not considered sufficient, nor was the conditions of the accommodation proposed by the employer, including unpaid administrative leave, respected. The temporary damage associated with the loss of jobs, benefits and income did not reach the extent of imminent irreparable damage that would justify issuing the TRO.

Ultimately, the court weighed the stocks and public interest of the vaccine regulations. In doing so, the court found that the plaintiffs’ claims and constitutional arguments failed to “overcome the significant public interest in requiring that law enforcement officials, medical and health care providers, teachers, school staff and school volunteers … be vaccinated”.

Ongoing litigation over vaccine mandates

This latest Oregon decision is one of a growing number of cases involving the legality of vaccine mandates. The general tenor of these decisions from New Mexico, Texas, Minnesota, and elsewhere is that both state and private employer mandates are legitimate. These other courts have addressed many of the same arguments at play in Oregon. The requirement to vaccinate as a working condition does not violate the United States Constitution, federal law, or international law.

With this in mind, the courts have taken a more mixed approach to mandates that restrict the availability of medical or religious accommodation for employees. Some of these courts have overturned public mandates that do not allow religious precautions, while others have scrutinized employer decisions to put all exempted workers on unpaid leave.

Therefore, while this emerging jurisprudence broadly supports the validity of vaccine mandates, companies should seek legal counsel as they introduce and implement such requirements and closely monitor this new area of ​​law.