On February 28, 2021, an employee of a county detention center filed suit in federal court in New Mexico seeking an injunction to prevent the employee from being fired for refusing to get a COVID-19 vaccine on the basis that the vaccines have only been approved by the U.S. Food and Drug Administration (FDA) under an Emergency Use Authorization (EUA) and cannot be mandated by employers under the EUA law. The case is Isaac Legaretta, et al. v. Fernando Macias, et al., filed in the United States District Court for the District of New Mexico, Docket No. 2:21-cv-00179. The employee does not allege that he requested an accommodation under the Americans with Disabilities Act (ADA) or under Title VII of the Civil Rights Act for religious reasons. The only claim is that employers cannot mandate the vaccine because it is only approved under an EUA.

The employee claims that an employer mandate for the COVID vaccine is preempted by the requirements of the EUA law that state that the individuals to whom the product is administered shall be informed by the FDA “of the option to accept or refuse administration of the product…” However, the FDA generally does not have jurisdiction over workplace relationships.

The first COVID-19 vaccine EUA was issued by the FDA on December 11, 2020. On December 16, 2020, the EEOC issued a set of FAQs under the heading “ADA and Title VII Issues Regarding Mandatory Vaccinations” which appeared to endorse the idea that employers could mandate vaccines, even where they were only approved by the FDA under an EUA, assuming they complied with laws related to providing reasonable accommodations under the ADA and Title VII.

This is a case to watch as it could provide guidance on how courts will treat employer-mandated COVID vaccine programs while the EUAs are in effect.